CWF and NWF file protest to BLM re: August 14th lease sale

August 1, 2008

National Wildlife Federation

2260 Baseline Road, Suite 100

Boulder, CO 80302

Colorado Wildlife Federation

1410 Grant Street, Suite C-313

Denver, Colorado 80203

Submitted by:

Joseph M. Feller, Senior Counsel

National Wildlife Federation

2260 Baseline Road, Suite 100

(303) 441-5158

FellerJ@nwf.org

PROTEST

by the National Wildlife Federation and the Colorado Wildlife Federation

of the inclusion of certain parcels

in the Notice of Competitive Lease Sale, Oil and Gas, dated June 9, 2008,

for the lease sale scheduled for August 14, 2008,

issued by the Colorado State Office of the United States Bureau of Land Management

The National Wildlife Federation and the Colorado Wildlife Federation hereby protest

the inclusion of the following thirty-one parcels in the Notice of Competitive Lease Sale, Oil and

Gas, dated June 9, 2008 (hereinafter Lease Sale Notice), for the lease sale scheduled for August

14, 2008, issued by the Colorado State Office of the United States Bureau of Land Management:

Serial # Serial # Serial #

COC73064

COC73065

COC73066

COC73067

COC73068

COC73069

COC73070

COC73071

COC73072

COC73073

COC73074

COC73075

COC73076

COC73077

COC73078

COC73079

COC73080

COC73081

COC73082

COC73083

COC73084

COC73085

COC73086

COC73087

COC73088

COC73089

COC73090

COC73091

COC73092

COC73093

COC73094

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Interest of the National Wildlife Federation and the Colorado Wildlife Federation

The National Wildlife Federation (NWF) is a national organization, with forty-eight state

affiliate organizations, dedicated to the protection and restoration of fish and wildlife and their

habitat for the benefit of this and future generations. NWF has over four million members,

including approximately twenty-two thousand members in Colorado. The Colorado Wildlife

Federation (CWF) is an affiliate of NWF and is Colorado’s oldest wildlife conservation

organization, with approximately 2,100 members.

The parcels that are the subject of this protest are on, and at the base of, the Roan Plateau.

These parcels contain some of the most important habitat in Colorado for wildlife and fish

species including, but not limited to, deer, elk, and Colorado River cutthroat trout. NWF and

CWF members use the federal land on and around these parcels for recreational and professional

purposes including, but not limited to, hunting, fishing, hiking, camping, wildlife viewing, and

scientific study. NWF and CWF have actively participated in the BLM’s planning process for

oil and gas development on the Roan Plateau for several years. NWF’s and CWF’s participation

have included, but not been limited to, participating in scoping meetings, submitting comments

on the Draft Environmental Impact Statement (EIS) for the Roan Plateau Resource Management

Plan Amendment (RPRMPA) in 2005, and filing a Protest of the Proposed RPRMPA in 2006.

If the proposed lease sale goes forward as announced, NWF’s and CWF’s members’ use

and enjoyment of lands on and around the Roan Plateau will be impaired by the extensive oil and

gas development that will occur on the parcels under protest. That impairment will include, but

not be limited to, the sights and sounds of industrial development, the impairment of air quality,

and, most important, the displacement of wildlife from winter and summer ranges and calving

grounds, the interruption of migration corridors, and the degradation of stream habitats for fish.

Of particular importance to NWF and CWF members are the federal public lands at the

base of the Roan Plateau that are critical winter range for a mule deer herd and an elk herd. The

deer and the elk depend on these lands for their survival. As adjacent private lands are under

intense energy development, the federal public lands proposed for lease form the remaining

winter range for these herds. By allowing intensive energy development in some of the last

remaining undeveloped winter range, the proposed lease sale would place these deer and elk

herds at risk.

Statement of Reasons for Protest

I. Incorporation by Reference.

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NWF hereby incorporates by reference in this Protest the following three documents, all

three of which are attached to this Protest:

(1) Attachment 1: The Protest filed by the National Wildlife Federation and the Colorado

Wildlife Federation, dated October 16, 2006, of the Proposed Roan Plateau Resource

Management Plan Amendment (RPRMPA) that was issued in September, 2006. Because the

proposed lease sale implements decisions made in the RPRMPA, all of the points raised in the

attached Protest of the Proposed RPRMPA are equally applicable to the proposed lease sale. We

therefore request that all of the points raised in the attached Protest of the RPRMPA be treated as

reasons for this Protest.

(2 ) Attachment 2: The letter, dated August 9, 2007, from the National Wildlife

Federation and the Colorado Wildlife Federation, commenting on the proposed Areas of Critical

Environmental Concern (ACECs) for the Roan Plateau Planning Area. Because the proposed

lease sale includes all of the areas that the attached August 9, 2007, letter urged the BLM to

designate as ACECs, the points raised in that letter are directly applicable to the proposed lease

sale. We therefore request that all of the points raised in the attached August 9, 2007, letter be

treated as reasons for this Protest.

(3) Attachment 3: The letter, dated December 20, 2007, from Sherman Harris, Director

of the Colorado Department of Natural Resources, to BLM Colorado State Director Sally

Wisely, regarding Comments on Proposed ACEC Provisions in the Roan Plateau Resource

Management Plan Amendment. This letter presents a specific proposal for oil and gas

development on the Roan Plateau that reflects, and would resolve, many of the issues and

concerns raised in this Protest. We therefore request that all of the points raised in the attached

December 20, 2007, letter be treated as reasons for this Protest.

II. The Proposed Lease Sale Contradicts Written Representations Made by the

Department of the Interior to the Governor of Colorado.

Less than five months ago, on March 13, 2008, Assistant Secretary for Land and Mineral

Management C. Stephen Allred transmitted a letter to Colorado Governor Bill Ritter concerning

proposed oil and gas development on the Roan Plateau. That letter contains at least two specific

and important representations that are contradicted by the proposed lease sale.

A. Contrary to the Written Representation to Governor Ritter, the proposed

leases do not contain No Surface Occupancy (NSO) stipulations for all lands

designated as Areas of Critical Environmental Concern (ACECs).

In a preceding letter to the BLM, Governor Ritter had requested that the BLM designate

36,184 acres on and around the Roan Plateau as Areas of Critical Environmental Concern

(ACECs), and that all of those acres be protected by No Surface Occupancy (NSO) stipulations.

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In his March 13, 2008, letter to Governor Ritter, Assistant Secretary Allred assured Governor

Ritter that, although only 21,034 acres were designated as ACECs, those ACECs “

require no,” and that, when the ACECs are combined with 17,336 acres of other landsdevelopment would be precluded on 38,470 acres.”

B. Contrary to the Written Representation to Governor Ritter, the proposed

lease sale will proceed without the certification necessary to provide the State

of Colorado its fair share of lease revenue

Under the Transfer Act, the State of Colorado risks receiving no revenue from the

proposed lease sale if it takes place before the certification prescribed in subsection (f)(2) of the

Transfer Act, 10 U.S.C. § 7439(f)(2). In his March 13, 2008 letter to Governor Ritter, Assistant

Secretary Allred assured the Governor that the certification “would occur prior to any lease sale”

and “will allow the State to receive its share of royalties and bonus bids.” Although, by all

accounts, funds already collected by the Treasury under 10 U.S.C. § 7439 exceed the projected

cost of environmental remediation at Anvil Points, absent certification under the Transfer Act,

the Act’s terms would appear to indicate that the State, and its affected communities, will not

receive any portion of bonus bid revenues – even if those funds greatly exceed the amounts

necessary to compensate the Treasury for remediation and infrastructure.

The proposed lease sale contradicts this assurance. Certification has not occurred, yet the

BLM is proceeding with the lease sale, and the State of Colorado will not receive its share of

royalties and bonus bids. In order to keep its commitment and provide Colorado its fair share, the

BLM should defer the proposed lease sale until certification has occurred.

.

III. The BLM Should Engage in Phased Leasing Rather than Leasing the Entire Roan

Plateau Planning Area Immediately

A. Phased leasing would facilitate the “adaptive” management that the BLM

claims it will practice.

The BLM has repeatedly asserted that it intends to engage in phased development of oil

and gas on the Roan Plateau over time rather than simultaneous development of the entire area.

The BLM has also asserted that it intends to practice “adaptive”management of the area,

modifying its management as it learns from the results of monitoring the impacts of oil and gas

development on wildlife habitat and other resources. But the BLM’s insistence on leasing the

entire area all at once precludes such adaptive management because it locks in a set of leases,

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with a particular set of stipulations, that cannot be changed.

The lease stipulations embody a set of assumptions about which wildlife species need

protection, what specific areas of, and how much, habitat they need, how they will be affected by

disturbance, and how development must be limited in order to protect them. These assumptions

could turn out to be wrong, or the resources they are designed to protect could be affected by

other factors or actions. Research about the effects of oil and gas development on deer, elk, and

other species is ongoing, and lease stipulations that are thought to be necessary and sufficient

today may turn out to be insufficient in a few years.

Similarly, the proposed leases embody a particular set of assumptions about what is

technologically feasible. For example, the lease stipulation for the Parachute Creek High Value

Watershed reflects the BLM’s assumption that one half mile is the greatest minimum spacing for

drill pads that is compatible with full extraction of the oil and gas in the planning area. Only a

few years ago, BLM routinely assumed that such horizontal reach was technologically

unfeasible, but technological innovation has outstripped hat assumption. Further advances in

directional drilling technology may soon allow for much greater pad spacing.

Because the BLM is planning for phased development of the Roan Plateau, it only makes

sense to engage in similarly phased leasing. Leases could be issued now for the first of the six

development areas on the top of the plateau. In the future, leases could be issued for each of the

remaining development areas in turn, with stipulations reflecting the advances in knowledge and

technology that have occurred in the interim. Given BLM’s own stated commitment to phased

development, coupled with the evolving nature of science and technology, it simply makes no

sense to lock in one set of stipulations by leasing the entire plateau at once.

B.

is a violation of NEPA.

The BLM’s failure to analyze and evaluate the alternative of phased leasing

Not only does the BLM’s failure to adopt a phased leasing approach defy common sense,

the BLM’s failure to even analyze such an alternative in the EIS for the RPRMPA is a violation

of NEPA, which requires consideration of all reasonable alternatives.

IV. The BLM Has Not Adequately Analyzed the Impacts of the Proposed Lease Sale on

Wildlife, Wildlife Habitat, and Other Natural Resources On and Around the Roan

Plateau

The issuance of oil and gas leases marks a commitment by the BLM that, under NEPA,

requires a full and thorough analysis of the environmental impacts of the development that may

occur on those leases.

Alliance v. Hodel

with NEPA through preparation of the Final Environmental Impact Statement (FEIS) for the

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RPRMPA. However, as explained in the attached Protest of the RPRMPA (Attachment 1 to this

Protest), that EIS is deficient in several respects, including, but not limited to the following:

– The FEIS is based on inadequate or non-existent data about wildlife populations and

wildlife habitat on and around the Roan Plateau.

RPRMPA, p. 9.

– The FEIS relies on Best Management Practices (BMPs) and other mitigation

measures without specifying which BMPs and which practices will be required in

which areas.

– The impact analysis in the FEIS is arbitrarily and unreasonably limited to the

development that will occur in the next twenty years, and it likely underestimates the

number of wells that will be drilled even in that time period.

the RPRMPA, pp. 10 - 11.

The BLM has the opportunity to overcome these deficiencies in the final EIS for the

RPRMPA by preparing additional, more specific, NEPA documentation to accompany the

proposed lease sale notice. However, the BLM has chosen not to do so. Moreover, the BLM

has made no commitment to prepare additional NEPA documentation when it receives

applications for permits to drill (APDs) or to conduct other development activities. Therefore,

the BLM is relying entirely on the final EIS for the RPRMPA, and that EIS is inadequate.

.See, e,g., Conner v. Burford, 848 F.2d 1441 (9th Cir. 1988); Bob Marshall, 852 F.2d 1223 (9th Cir. 1988). In this case, the BLM has attempted to complySee attached Protest of theSee attached Protest of the RPRMPA, pp. 6 - 8.See attached Protest of

V. The BLM Has Not Analyzed the Impacts of Development During the Full Life of the

Proposed Leases

The analysis of the environmental impacts in the FEIS for the RPRMPA was limited to a

20-year horizon, which the BLM deemed to be “the life of the plan.” The BLM refused to

analyze the impacts of full field development because “[f]ull field development is not anticipated

during the life of this plan.” Letter from Susan Giannettino, Acting Assistant Director,

Renewable Resources and Planning, to Kathleen C. Zimmerman, National Wildlife Federation,

p. 17 (June 7, 2007) (responding to NWF’s Protest of the Proposed RPRMPA).

the proposed leases is not limited to 20 years.

term

Lease Sale Notice at iii (emphasis added). Moreover, because the BLM is requiring that all

leases on top of the Roan Plateau be covered by a single Federal Unitization Agreement,

the leases on top of the Plateau will continue so long as even one lease is still producing in

paying quantities. Therefore, even if an impact analysis limited to 20 years were adequate to

support the RPRMPA, it is certainly not adequate to support issuance of the proposed leases.

The BLM’s refusal to analyze the impacts of full field development is not only

unjustified, it is also supremely unrealistic. The lands immediately adjoining the proposed

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leaseholds on all sides, including the western portion of the Roan Plateau right up to the border

of the proposed leaseholds, are already undergoing intensive development for gas extraction.

The gas resource on the proposed leaseholds is well-known and highly sought-after. There is no

reason to believe that it will not be developed to the full extent that the proposed leases will

allow. To issue those leases without a full analysis of the full development that they will allow is

irresponsible and contrary to NEPA.

But the life ofEach lease “will continue beyond its primaryas long as oil or gas in paying quantities is produced on or for the benefit of the lease.all of

VI. The Majority of the Proposed Lease Stipulations Contain Embedded Waiver

Provisions that Unreasonably and Unlawfully Grant BLM the Authority to Waive

Compliance Without Public Notice, Opportunity for Comment or Protest, or

Environmental Analysis

Because the BLM has rejected the possibility of protecting wildlife and wildlife habitat

by leaving any portion of the Roan Plateau planning area unleased, the primary mechanism for

protecting wildlife, wildlife habitat, and other resources in the planning area is the incorporation

of protective stipulations in leases. The Final EIS (FEIS) and the Record of Decision (ROD) rely

heavily and repeatedly on assurances that such stipulations will be adequate to protect wildlife

and wildlife habitat from degradation by oil and gas development. However, the terms of the

stipulations are so porous that such assurances are not justified.

In an apparently novel stipulation drafting technique, not encountered in lease

stipulations in prior Colorado oil and gas lease sales,

Appendix B (pp. 77 - 107) of the Lease Sale Notice contain embedded provisions that authorize

the BLM to permit development contrary to the terms of the stipulations without advance notice

to the public, opportunity for comment or protest by the public, or documentation under NEPA.

1 the majority of the stipulations set out in

See, e.g.,

in wildlife security areas below the Roan Cliffs “may be permitted by BLM” despite

stipulation in preceding paragraph that “no ground-disturbing activities will be permitted” in

such areas). Some of these provisions require prior consultation with the Colorado Division of

Wildlife (CDOW) or the U.S. Fish & Wildlife Service; none require consultation with affected

individuals and private organizations.

These provisions clearly have the effect of allowing the BLM to waive the affected

stipulations without public review or analysis under NEPA. Yet, because these provisions have

Lease Sale Notice at 88 (Exhibit GS-NSO-ROAN-27, stating that ground disturbingactivities

1

November 2007 Lease Sale, Stipulation CO-18 (Raptor Nest Sites – providing that “Any changes to this stipulation

will be made in accordance with the land use plan and/or the regulatory provisions for such changes. (For guidance

on the use of the stipulation, see BLM Manual 1624 and 3101 or FS Manual 1950 and 2820.) Exception Criteria:

Exceptions may be granted during years when the nest site is unoccupied, when occupancy ends by or after May 15,

or once the young have fledged and dispersed from the nest”).

Compare GS-NSO-ROAN-25 (Raptor Nest Sites – providing for “embedded waiver”) with, e.g., BLM Colorado

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been embedded in the stipulations themselves, the BLM claims that they are not “exceptions,

modifications, or waivers” but rather statements of “the conditions under which each stipulation

would apply, and standards that must be met for their application.” Lease Sale Notice at 77.

This drafting sleight-of-hand, however, does not alter the reality that these provisions, in effect,

grant the BLM broad license to waive stipulations that are critical for protection of wildlife,

wildlife habitat, and other resources. For this reason, we shall hereinafter refer to these

provisions as “embedded waiver provisions” even though the BLM attempts to deny that they

authorize waivers.

Embedded waiver provisions are included in the following stipulations in the lease sale

notice:

GS-NSO-ROAN-17 (Wild and Scenic River Eligibility Corridors)

Affected Parcels: COC73074, COC73075, COC73077, COC73079, COC73080,

COC73081, COC73082, COC73084, COC73086, COC73088, COC73089, COC73090,

COC73091, COC73092

GS-NSO-ROAN-18 (Sharrad Park Paleontological Resources)

Affected Parcels: COC73085

GS-NSO-ROAN-23 (Riparian and Wetland Habitat)

Affected Parcels: COC73064, COC73065, COC73066, COC73067, COC73068,

COC73069, COC73070, COC73071, COC73074, COC73075, COC73076, COC73077,

COC73078, COC73079, COC73080, COC73081, COC73082, COC73083, COC73084,

COC73085, COC73086, COC73087, COC73088, COC73089, COC73090, COC73091,

COC73092, COC73093

GS-NSO-ROAN-24 (Threatened, Endangered, or Candidate Species Habit)

Affected Parcels: COC73080, COC73084, COC73090

GS-NSO-ROAN-25 (Raptor Nest Sites)

Affected Parcels: COC73076, COC73079, COC73078, COC73082, COC73083,

COC73084, COC73089, COC73090, COC73091, COC73092, COC73094

GS-NSO-ROAN-27 (Wildlife Security Areas Below the Rim)

Affected Parcels: COC73064, COC73066, COC73068, COC73070, COC73071,

COC73076, COC73077, COC73080, COC73083, COC73084, COC73085, COC73090,

COC73093, COC73094

GS-NSO-ROAN-28 (High Value Special Status Fish Species Habitat)

Affected Parcels: COC73074, COC73075, COC73076, COC73077, COC73078,

COC73079, COC73080, COC73081, COC73082, COC73084, COC73086, COC73088,

COC73089, COC73090, COC73091, COC73092

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GS-NSO-ROAN-30 (I-70 Viewshed)

Affected Parcels: COC73066, COC73068, COC73069, COC73070, COC73071,

COC73072, COC73080, COC73084, COC73085, COC73090, COC73091, COC73093,

COC73094

GS-NSO-ROAN-31 (East Fork Falls Viewshed (VRM 1)

Affected Parcels: COC73089, COC73092

GS-CSU-ROAN-04 (Erosive Soils and Slopes Greater than 30 percent)

Affected Parcels: COC73064, COC73065, COC73066, COC73067, COC73068,

COC73069, COC73070, COC73071, COC73072, COC73074, COC73076, COC73077,

COC73080, COC73081, COC73083, COC73084, COC73085, COC73089, COC73090,

COC73091, COC73092, COC73093, COC73094

GS-CSU-ROAN-08 (Peregrine Falcon Cliff-Nesting Complex)

Affected Parcels: COC73084, COC73090

GS-CSU-ROAN-09 (Wildlife Security Areas Above the Rim)

Affected Parcels: COC73074, COC73075, COC73076, COC73077, COC73078,

COC73079, COC73080, COC73081, COC73082, COC73084, COC73086, COC73088,

COC73089, COC73090, COC73091, COC73092, COC73093

GS-CSU-ROAN-10 (Big Game Migration Corridors)

Affected Parcels: COC73076, COC73080

GS-CSU-ROAN-12 (Habitat for Special Status Plant Species Populations and Significant

Plan Communities)

Affected Parcels: COC73064, COC73066, COC73068, COC73070, COC73071,

COC73074, COC73076, COC73077, COC73078, COC73079, COC73080, COC73081,

COC73082, COC73083, COC73084, COC73085, COC73086, COC73087, COC73088,

COC73089, COC73090, COC73091, COC73092, COC73094

GS-CSU-ROAN-13 (Parachute Creek High Value Watershed and WMA)

Affected Parcels: COC73077, COC73078, COC73079, COC73080, COC73082,

COC73084, COC73086, COC73087, COC73088, COC73089, COC73090, COC73091,

COC73092

GS-CSU-ROAN-14 (VRM Class II Areas Below the Rim)

Affected Parcels: COC73064, COC73066, COC73068, COC73070, COC73071,

COC73073, COC73074, COC73076, COC73077, COC73080, COC73083, COC73084,

COC73085, COC73090, COC73093, COC73094

GS-CSU-ROAN-15 (VRM Class III Areas Above the Rim

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Affected Parcels: COC73074, COC73075, COC73076, COC73077, COC73078,

COC73079, COC73080, COC73081, COC73082, COC73084, COC73086, COC73087,

COC73088, COC73089, COC73089, COC73090, COC73091, COC73092

GS-CSU-ROAN-16 (Hubbard Mesa OHV Riding Area)

Affected Parcels: COC73068, COC73069, COC73071, COC73072

GS-TL-ROAN-13 (Big Game Winter Range)

Affected Parcels: COC73065, COC73066, COC73067, COC73068, COC73069,

COC73070, COC73071, COC73072, COC73074, COC73075, COC73076, COC73077,

COC73080, COC73081, COC73083, COC73084, COC73085, COC73089, COC73090,

COC73093, COC73094

GS-TL-ROAN-14 (Raptor Nesting Sites)

Affected Parcels: COC73074, COC73076, COC73078, COC73079, COC73082,

COC73083, COC73084, COC73088, COC73090, COC73091, COC73092, COC73094

GS-TL-ROAN-16 (Peregrine Flacon Cliff- Nesting Complex)

Affected Parcels: COC73084, COC73090, COC73091, COC73094

A. The embedded waiver provisions invalidate the analysis in the Final EIS.

The FEIS’s conclusion that the proposed leases would not have unacceptable adverse

impacts on wildlife, wildlife habitat, recreation, or visual quality were based in large part on the

assumption that the lease stipulations would be applied and enforced. As the BLM stated in its

response to our Protest of the Proposed RPRMPA:

“This discussion of impacts [in the FEIS] was completed with the assumption that

all the protective measures described in the Proposed RMPA would be applied.

As stated on page 4-6, ‘. . . the impact analyses throughout Chapter 4 assume that

the restrictions and limitations would apply throughout the planning area and 20-

year planning period.’”

Letter from Susan Giannettino, Acting Assistant Director, Renewable Resources and Planning, to

Kathleen C. Zimmerman, National Wildlife Federation, p. 17 (June 7, 2007) However, the broad

embedded waiver provisions in most of the stipulations create a likelihood that the protective

measures described in the RPRMPA will

analysis in the FEIS and they represent, in effect, the adoption of a new alternative whose

impacts were not analyzed in the FEIS.

not be applied. They therefore render invalid the

B. The embedded waiver provisions are contrary to 43 C.F.R. § 3101.1-4

43 C.F.R. § 3101.1-4 governs the modification and waiver of lease provisions. That

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regulatory section requires a public review period of at least 30 days before modification or

waiver of “a stipulation [that] involves an issue of major concern to the public” and before a

“substantial” modification or waiver of any stipulation.

All of the stipulations in which the BLM has embedded waiver provisions “involve issues

of major concern to the public.” Numerous and extensive public comments have expressed the

widespread concern that oil and gas development on and around the Roan Plateau will damage or

destroy the resources that these stipulations are designed to protect: Wild and Scenic Rivers,

riparian and wetland habitats, habitat for threatened or endangered species of wildlife, rare

plants, raptor nesting sites, crucial deer and elk habitat, Colorado River cutthroat trout, soils,

watersheds, fossils, and scenic views. These stipulations are the BLM’s primary means of

addressing these major public concerns. Therefore, under 43 C.F.R. § 3101.1-4, the BLM

should find that all of these stipulations “involve issues of major concern to the public” and

specify in the leases that they will not be modified or waived without a 30-day public review

period.

Instead, however, the BLM has rigged the stipulations by placing within them embedded

waiver provisions that allow the BLM to permit, without public review, activities that violate the

prohibitions of the stipulations. This transparent circumvention of the requirements of 43

C.F.R.§ 3101.1-4 is unlawful. The stipulations should be revised to eliminate the embedded

waiver provisions and to state that they will not be waived or modified without a 30-day public

review period.

.

C. The embedded waiver provisions are contrary to the public participation

requirements of NEPA and FLPMA.

The regulations implementing NEPA require the BLM to “[m]ake diligent efforts to

involve the public in preparing and implementing their NEPA procedures.” 40 C.F.R.

§ 1506.6(a). The modification or waiver of stipulations that were developed through the NEPA

process is part of the implementation of BLM’s NEPA procedures. Therefore, the BLM is

required to make diligent efforts to involve the public in decisions about such modifications or

waivers. But the embedded waiver provisions do just the opposite; they are a contrivance that

excludes the public from decisions about waivers and modifications. They are therefore contrary

to 40 C.F.R. § 1506.6(a) and to NEPA, which that regulation implements.

The embedded waiver provisions are also contrary to the Federal Land Policy and

Management Act (FLPMA). Section 309(e) of FLPMA requires the BLM to “establish

procedures, including public hearings where appropriate, to give the Federal, State, and local

governments

formulation of standards and criteria for,

plans and programs for,

(emphasis added). As reflected in the emphasized language, Congress intended to require public

participation not only in the preparation of plans and programs, but also “there are strong

12

indications that Congress intended some form of public input for all decisions that may have

significant impact on federal lands.”

(D.C. Cir. 1987) (citing H.R. Rep. No. 1163, 94th Cong., 2d Sess. 7 (1976), U.S. Code Cong. &

Admin. News 1976, p. 6181). Decisions to permit drilling and other oil and gas development

activities in areas that would otherwise be closed to such activities by lease stipulations are

clearly decisions that may have significant impact on federal lands. Therefore, under FLPMA,

public input is required for such decisions. By authorizing such decisions without public notice

or opportunity for comment, the embedded waiver provisions in the proposed leases violate

FLPMA.

and the public adequate notice and an opportunity to comment upon theand to participate in, the preparation and execution ofand the management of, the public lands.” 43 U.S.C. § 1739(e)National Wildlife Federation v. Burford, 835 F.2d 305

D. The standards incorporated in the embedded waiver provisions are far too

vague, and they undermine the transparency of the stipulations and the

public process by which they were developed.

The embedded waiver provisions include standards that purport to limit their application

so as not to defeat the purposes of the stipulations. But these standards are so vague as to be

virtually meaningless. Again, stipulation GS-NSO-ROAN-27 (Lease Sale Notice at 88),

concerning ground-disturbing activities in specified wildlife security areas below the Roan

Cliffs, is a typical example. The embedded waiver provision in this stipulation states that such

otherwise-forbidden activities may be permitted if the BLM determines that they “would not

impair values associated with maintenance of the species of interest.” The wording of the

embedded waiver provisions in most of the other stipulations is very similar.

The meaning of “values associated with maintenance” is completely unclear. The

provision goes on to provide a long list of factors that the BLM will “consider” in making this

determination, but the list does nothing to clarify the standard to be applied to those factors.

Moreover, such

stipulations were developed in the first place. Through the NEPA process, with public input and

review, the BLM has already concluded that maintenance of certain wildlife species requires that

certain activities be prohibited in certain specified areas. The embedded waiver provisions,

however, allow the BLM to reconsider those conclusions in a non-public, NEPA-free process.

ad hoc determinations completely vitiate the public NEPA process by which the

E. Contrary to NEPA, the embedded waiver provisions fail to account for the

cumulative effects of the activities that they will permit.

The most pernicious effect of the embedded waiver provisions is that they can be used to

authorize many individual activities that each may have an insignificant impact on wildlife or

other resources but that will cumulatively have major effects on such resources. The BLM may

readily determine, for example, that a single well pad, pipeline, or other ground disturbance in a

wildlife security area “would not impair values associated with maintenance of” deer or elk. But

the combined effect of many such disturbances, along with the effects of other activities

permitted by the embedded waiver provisions contained in other stipulations, will

unquestionably have a much greater impact than will any single disturbance.

13

As the BLM is well aware, it is for precisely this reason that NEPA requires the BLM to

assess the cumulative effects of

provisions, because they allow the BLM to authorize many activities without analyzing or

considering the cumulative effects of those activities, are contrary to NEPA.

all the actions it takes in any area. Thus, the embedded waiver

F. The monitoring and reporting requirements accompanying the embedded

waivers are far too vague and abdicate the BLM’s responsibilities

Each of the embedded waiver provisions contains a boiler-plate monitoring requirement,

but that monitoring requirement is so non-specific that it provides no assurance that adverse

affects of permitted activities will be detected and corrective action taken in a timely fashion.

The boiler-plate requirement states simply that “ongoing monitoring data shall be collected by

the proponent using widely accepted scientific methods.” It does not state what will be

monitored, how it will be monitored, when and where it will be monitored, or the intensity or

frequency of the monitoring. It leaves these decisions up to the oil and gas operators, and

requires only annual reporting to the BLM and notification to the BLM “if unanticipated types or

levels of adverse effects are noted.” The determination of what constitutes an “unanticipated

type or level of adverse effect” is also left to the operator. This boiler-plate monitoring

requirement is not only inadequate but it also abdicates the BLM’s responsibility to protect the

land and its resources from degradation.

.

VII. The “Exploratory Well” Exception to the Phased Development Stipulation for the

Top of the Roan Plateau Renders that Stipulation Ineffective

The key to the BLM’s plan for limiting the effects of oil and gas development on wildlife

and other resources on top of the Roan Plateau is the stipulation requiring the sequential

development of six different areas on top of the plateau, with no development permitted on an

area until the previous area has been reclaimed. (Stipulation GS-CSU-ROAN-13, affecting

parcels COC73077, COC73078, COC73079, COC73080, COC73082, COC73084, COC73086,

COC73087, COC73088, COC73089, COC73090, COC73091, and COC73092.) But this

stipulation includes a glaring exception, providing that “exploratory wells may be drilled in other

areas sufficient to plan future drilling operations.” This exception is so broad that it swallows

the rule. Under this exception, exploratory wells, with no clear limit on their number, and their

associated disturbance and infrastructure may be present and active in any, or all, of the six

development areas at the same time.

This exception should either be removed or greatly circumscribed. If it is not removed,

it should be clarified to sharply limit the number of exploratory wells and to require that

exploratory wells be no more than one development area ahead of the rest of the development on

the plateau.

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VIII. The Controlled Surface Use (CSU) Stipulations Are Far Too Vague and Leave

Critical Decisions to be Made Without Public Review or Environmental Analysis

The problems created by the embedded waiver provisions in most of the proposed lease

stipulations are made even worse by the vague provisions of the Controlled Surface Use (CSU)

stipulations. The CSU stipulations provide that the BLM may, but not necessarily will, take

certain actions to protect erosive soils and steep slopes (GS-CSU-ROAN-04), riparian and

wetland habitats (GS-CSU-ROAN-07), a peregrine falcon cliff-nesting complex (GS-CSUROAN-

08), wildlife security areas above the rim (GS-CSU-ROAN-09), big game migration

corridors (GS-CSU-ROAN-10), special status plant species and significant plant communities

(GS-CSU-ROAN-12), the Parachute Creek high value watershed (GS-CSU-ROAN-13), VRM

Class II areas below the Roan Cliffs (GS-CSU-ROAN-14), and VRM Class III areas on top of

the Roan Plateau (GS-CSU-ROAN-15). These provisions leave the protection of critical

resources to the unfettered discretion of the BLM. The public has no way of knowing whether,

when, how, or to what extent the BLM will exercise the discretion it has under these provisions,

no assurance that the BLM’s actions will be adequate to protect the resources concerned, and no

opportunity for input into the BLM’s actions. Therefore, these provisions, like the embedded

waiver provisions in these and most of the other stipulations, are contrary to the environmental

analysis requirements of NEPA and to the public participation requirements of NEPA and

FLPMA.

IX. The Proposed Lease Sale Will Result in Unnecessary and Undue Degradation of

Wildlife and Wildlife Habitat

FLPMA requires the BLM to “take any action necessary to prevent unnecessary or undue

degradation of the [public] lands.” 43 U.S.C. § 1732(b). The resources that this requirement

protects include wildlife and wildlife habitat.

define “unnecessary or undue degradation,” any degradation that results from a failure to take

reasonably available measures to minimize or avoid such degradation is surely both

“unnecessary and undue.”

As noted in the attached October 16, 2006, Protest of the Proposed Roan Plateau

Resource Management Plan Amendment (RPRMPA) (Attachment 1 to this Protest), the

proposed lease sale will result in numerous forms of degradation of wildlife habitat, some of

which are recognized in the Final Environmental Impact Statement (FEIS) accompanying the

RPRMPA. These forms of degradation include, but are not limited to, a loss of 18.7 percent of

the remaining mule deer wintering habitat below the Roan Cliffs, displacement of deer and elk

populations, and loss or permanent alteration of some areas of high quality wildlife habitat for

species such as Colorado River cutthroat trout.

Proposed RPRMPA at 3 (quoting FEIS at 4-55, 4-44, and 4-130, respectively). There are

numerous readily available measures to protect wildlife and wildlife habitat in the Roan Plateau

15

Planning Area that the BLM could have, but did not, include in the proposed leases.

See id. § 1701(a)(8). While FLPMA does notSee October 16, 2006, NWF/CWF Protest of

A. The BLM has failed to designate and protect crucial wildlife habitat areas as

Areas of Critical Environmental Concern (ACECs).

FLPMA requires the BLM to “give priority to the designation and protection of areas of

critical environmental concern.” 43 U.S.C. 1712(c)(3). The BLM, in its draft EIS for the

RPRMPA, identified 36,184 acres in(1) the East Fork Parachute Creek Watershed, (2) the

Trapper and Northwater Creeks watersheds, (3) the Anvil Points watershed, and (4) the Magpie

Gulch area that deserve protection as ACECs because they provide crucial habitat for mule deer,

elk, and Colorado River cutthroat trout. The Colorado Division of Wildlife, which is the agency

responsible for management of fish and wildlife in Colorado, wrote in its comments on the

BLM’s final proposal for designation of ACECs:

We believed at the time of the draft plan, and still believe today, that the ACECs

identified in the 1999 [draft] EIS should be fully protected as ACECs with No

Surface Occupancy stipulations. . . . Without these very minimum ACECs, we

can say that the plan will jeopardize the Roan Plateau's important wildlife habitat.

NWF and CWF voiced the same concern in the August 9, 2007, letter that is attached to

this protest as Attachment 2. The reasons for protecting the full 36,184 acres of proposed

ACECs were also presented in detail in a December 20, 2007, letter from Harris Sherman,

Director of the Colorado Department of Natural Resources to BLM Colorado State Director

Sally Wisely (Attachment 3 to this Protest). The BLM, however, extended ACEC designation

only to a reduced area of approximately 21,000 acres, and even that reduced area is not fully

protected by NSO stipulations. Specifically, areas of critical big game winter range below the

Roan Cliffs in the Anvil Points and Magpie Gulch ACECs are not protected by NSO stipulations.

The proposed lease sale should be withdrawn and revised to extend ACEC designation,

with full NSO protection, to the 36,184 acres of ACECs proposed in the 1999 Draft EIS.

B. The BLM has failed to adequately protect big game habitat below the Roan

Cliffs.

As CDOW, NWF, and CWF have repeatedly emphasized, winter habitat below the Roan

Cliffs is just as critical, if not more critical, to deer and elk populations as is summer habitat

above the rim. As adjacent private lands are under intense energy development, the federal

public lands at the base of the Roan Plateau provide some of the last remaining undeveloped

winter range. Yet the proposed leases fail to extend the same protection to habitat below the rim

as they do to habitat above the rim. In order to fully protect habitat below the rim, the following

measures should be implemented:

(1) The same clustered, phased, development, with surface disturbance being limited to

16

one development area at a time, that is being required for development in the Parachute Creek

High Value Watershed and WMA above the rim should also be required in deer and elk winter

range below the rim.

(2) The same half-mile (or greater) well spacing that is being required in the Parachute

Creek High Value Watershed and WMA above the rim should be required in deer and elk winter

range below the rim.

(3) All remaining critical mule deer wintering habitat below the rim should be protected

by NSO stipulations.

C. Well-spacing requirements should be increased in critical wildlife areas.

The proposed lease sale stipulation for the Parachute Creek High Value Watershed on top

of the plateau requires a minimum of one half mile between drill pads, which corresponds to a

pad spacing of 160 acres, or four pads per section. Available evidence suggests that 160-acre

spacing is not sufficient to protect big game habitat. For example, according to the

recommendations of the Wyoming Game and Fish Department, a density of four pads per section

is on the margin between “high” and “extreme” impacts on elk crucial winter range and calving

areas.

and Gas Resources within Crucial and Important Wildlife Habitats 23 (2004) (available at

See Wyoming Game and Fish Department, Recommendations for Development of Oil

http://gf.state.wy.us/downloads/pdf/og.pdf

of four pads per section is at the very upper end of the range of pad densities (1 - 4 pads per

section) for which the impacts on crucial deer winter range can be considered “moderate.”

Moreover, the industry can do better than 160-acre spacing. The proposed wildlife

habitat protection rules of the Colorado Oil and Gas Commission have a provision (proposed rule

1208.c ) encouraging operators to limit well sites to two per section (320-acre spacing) in

sensitive wildlife habitats (including mule deer critical winter range) and one per section (640-

acre spacing, or one mile average distance between wells) in sage grouse areas. There is no

reason that a spacing at least this great should not be required on the Roan Plateau.

). According to the same recommendations, a density

Conclusion

For all of the foregoing reasons, the National Wildlife Federation and the Colorado

Wildlife Federation respectfully request that the BLM remove all of the parcels listed on the first

page of this Protest from the August 14, 2008, lease sale.

17

Respectfully submitted,

Joseph M. Feller, Senior Counsel

National Wildlife Federation

2260 Baseline Road, Suite 100

Boulder, CO 80302

(303) 441-5158

FellerJ@nwf.org

for the National Wildlife Federation and the

Colorado Wildlife Federation

Attachments:

1. Protest filed by the National Wildlife Federation and the Colorado Wildlife Federation, dated

October 16, 2006, of the Proposed Roan Plateau Resource Management Plan Amendment

(RPRMPA) that was issued in September, 2006.

2. Letter, dated August 9, 2007, from the National Wildlife Federation and the Colorado

Wildlife Federation, commenting on the proposed Areas of Critical Environmental Concern

(ACECs) for the Roan Plateau Planning Area.

3. Letter, dated December 20, 2007, from Sherman Harris, Director of the Colorado Department

of Natural Resources, to BLM Colorado State Director Sally Wisely, regarding Comments on

Proposed ACEC Provisions in the Roan Plateau Resource Management Plan Amendment. This

letter presents a specific proposal for oil and gas development on the Roan Plateau that reflects,

and would resolve, many of the issues and concerns raised in this Protest. We therefore request

that all of the points raised in the attached December 20, 2007, letter be treated as reasons for this

Protest.

surface occupancy

protected by NSO stipulations, “

The proposed lease sale contradicts this assurance. Although some of the proposed leases

contain NSO stipulations, those NSOs do not cover the entire 21,034 acres designated as

ACECs, and development is not precluded on 38,470 acres. Therefore, the proposed leases

should be withdrawn and rewritten to provide for no surface occupancy on all lands designated

as ACECs, as promised to Governor Ritter by Assistant Secretary Allred.

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