CWF - NWF Protest BLM Feb. Lease Auction Parcels

February 4, 2009

National Wildlife Federation

2260 Baseline Road, Suite 100

Boulder, CO 80302

Colorado Wildlife Federation

1410 Grant Street, Suite C-313

Denver, Colorado 80203


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 December 12, 2008, for the lease sale scheduled for February 12, 2009,

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

VIA FACSIMILE to Colorado State Director Sally Wisely at 303-239-3799

The National Wildlife Federation and the Colorado Wildlife Federation hereby protest the

inclusion of the following parcels in the Notice of Competitive Lease Sale, Oil and Gas, dated

December 12, 2008 (hereinafter Lease Sale Notice), for the lease sale scheduled for February 12,

2009, issued by the Colorado State Office of the United States Bureau of Land Management:

COC73426, COC73427,

COC73428, COC73430,

COC73432, COC73433,

COC73434, COC73435,

COC73436, COC73437,

COC73443, COC73447,

COC73448, COC73449,

COC73450, COC73451,

COC73452, COC73453,

COC73454, COC73455,

COC73456, COC73457,

COC73458, COC73459,

COC73460, COC73462,

COC73463, COC73464,

COC73465, COC73471,

COC73472, COC73473,

COC73474, COC73475,

COC73476, COC73477,

COC73478, COC73479,

COC73480, COC73481,

COC73482, COC73483,

COC73484, COC73485,

COC73486, COC73487,

COC73488, COC73489,

COC73492, COC73496,

COC73497, COC73498,

COC73499, COC73501,

COC73506, COC73512,

COC73522, COC73523,

COC73525, COC73526,

COC73527, COC73532,

COC73536, COC73539



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. The Colorado Wildlife

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


The parcels that are the subject of this protest contain important habitat in Colorado for

wildlife and fish species including, but not limited to, mule deer, elk, pronghorn, Greater

and Gunnison sage-grouse 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.

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

and enjoyment of lands proposed for leasing will be impaired by the extensive oil and gas

development that may 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, calving grounds, grouse breeding, roosting, and winter habitat; the interruption of

migration corridors; and the degradation of stream habitats for fish.


Under the statutory and regulatory provisions authorizing this lease sale, the Bureau of

Land Management (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., 969 F.2d 877 (10th Cir. 1992); McDonald v. Clark, 771 F.2d 460, 463 (10th Cir.Burglin v. Morton, 527 F.2d 486, 488 (9th Cir. 1975). As discussed inKleppe v.


Sierra Club

without stipulations prohibiting surface occupancy—leases such as the proposed

February 2009 leases under protest—the agencies must assess the environmental impacts

of reasonably foreseeable post-leasing oil and gas development prior to issuance of the


, 427 U.S. 390, 410 n.21 (1976). When offering oil and gas leases for saleSee, e.g., Southern Utah Wilderness Alliance, 159 IBLA 220, 240-43 (2003);

Pennaco Energy, Inc. v. U.S. Dep’t of the Interior,

377 F.3d 1147 (10th Cir. 2004);

Conner v. Burford

(D.C. Cir. 1983). Reliance on RMP documents alone cannot suffice for the core NEPA

function of adequate consideration of alternatives.

1162 (explaining that documents such as “Determinations of NEPA Adequacy” cannot

satisfy NEPA’s “hard look” standard). Because none of the February 2009 lease parcels

are entirely No Surface Occupancy (“NSO”) leases, leasing, which confers specific rights

to develop that BLM and the United States Forest Service (USFS) cannot readily deny, is

a concrete federal action with readily foreseeable environmental effects, and cannot

legally go forward without NEPA analysis.

With respect to Greater and Gunnison sage-grouse, mule deer, pronghorn, elk and native

trout, BLM is in possession of substantial and material new information about the current

condition of habitat and wildlife populations, the impacts of oil and gas drilling on the

habitat, and recommended management measures for reducing the adverse effects of

development on wildlife populations. It is key that BLM take this information into

account before leasing parcels, as the agency has acknowledged, both by withdrawing

sage-grouse habitat within the White River resource area from the February 2007 lease

sale for further analysis;

sage-grouse occupied habitat from leasing,

and by deferring numerous grouse-occupied parcels from the November 2007 lease sale

for evaluation or further consultation with the Colorado Division of Wildlife (CDOW),

, 848 F.2d 1441 (9th Cir. 1988); Sierra Club v. Peterson, 717 F.2d 1409See Pennaco Energy, 377 F.3d atSee 43 C.F.R. § 3101.1-2.1 by amending the November 2007 lease sale to defer Gunnisonsee Notice of Addendum, October 5, 2007;


October 30, 2007.

This consideration is vital because this new data was not taken into account either when

BLM completed the environmental analysis for the applicable Resource Management

Plans (RMPs) or in their 1991 oil and gas leasing amendments.

the Interior Board of Land Appeals in

confirmed the need to complete additional analysis before leasing, stating that “whether

more NEPA analysis based on new information is required depends on the nature of the

NEPA analysis already completed, and the nature of the information available at the time

BLM Colorado, Notice of Addendum to Competitive Oil and Gas Lease Sale Notice,2 The recent decision ofCenter for Native Ecosystems (CNE), has


Lease Sale Protest of Parcels COC70761 and COC70762 Is Upheld.

Bureau of Land Management Colorado State Office, Decision: February 8, 2007 Competitive Oil &Gas


to rely to support the proposed leasing action are the Glenwood Springs RMP (1984); San Juan San Miguel

RMP (1985); Little Snake RMP (1989); Uncompahgre Basin RMP (1989), White River RMP (1997) and

the Land and Resource Management Plan for the Grand Mesa, Uncompahgre and Gunnison National

Forests. Each of these NEPA documents is more than a decade old, clearly triggering the need for

heightened scrutiny under NEPA guidance issued by the Council on Environmental Quality and by BLM’s

earlier IM Nos. 2000-034 and 2001-062.

NWF and CWF understand the RMPs and accompanying environmental analyses on which BLM intends


of the agency action.” 170 IBLA 331, 346 (2006). As in

NEPA documentation contains no analysis of significant new information from CDOW

and other sources regarding impacts to mule deer, elk, pronghorn, native trout, and

Greater and Gunnison sage-grouse, BLM must complete further NEPA analysis prior to

issuing leases.

CNE, because BLM’s existing

I. PARCELS COC73426, COC73427, COC73428, COC73434, COC73435,

COC73437, COC73443, COC73449, COC73457, COC73459, COC73460,

COC73465, COC73477, COC73478, COC73479, COC73481, COC73482,

COC73483, COC73485, COC73486, COC73487, COC73488, COC73489,

COC73492, COC73496, COC73497, COC73498, COC73499, COC73506,

COC73523, COC73525, COC73526, COC73527, COC73532, COC73536,


The proposed lease sale includes several thousand acres of elk, mule deer, and pronghorn

critical winter habitat and migration corridors, with reliance on Timing Limitation

Stipulations (TLS) but no provision, in lease stipulations, for limiting density of surface

development or otherwise managing habitat loss and fragmentation. The current lease

sale is being proposed under the current RMPs and 1991 leasing EIS that, with regard to

energy development and mule deer, fail to take into account, or consider alternatives

based on, significant new research demonstrating the effects of natural gas development

on mule deer. The 1991 FEIS concedes that “[t]he continual human activities and

associated facilities with several producing wells could have a significant impact [on big

game], depending on the type and level of activity, the habitat affected, geography, and

other pertinent factors.” 1991 Leasing FEIS 4-4 to 4-5. At the time, however, BLM

lacked concrete data now available demonstrating just how significant that impact is at

even moderate levels of development. The Sublette Mule Deer Study, analyzing effects

on mule deer from gas development in the area around Pinedale, Wyoming, has shown

that mule deer avoid gas field development, and that mule deer abundance declined 46%

(most likely due to reduced survival rates) in areas affected by development. Western

Ecosystems Technology 2006 Annual Report, Sublette Mule Deer Study (Phase 2) i-ii.

The results of the Sublette Mule Deer Study, assessing development under the standard

timing stipulations relied on by BLM (Stipulation CO-09), demonstrate that BLM’s

assumption in the 1991 FEIS – that “impacts will be reduced or eliminated by the

combination of timing limitation stipulations and other mitigation possible through

application and enforcement of the standard lease terms and the regulations,” 1991

Leasing FEIS 4-5 – is incorrect under actual real-world development scenarios.

Although we are aware the Colorado BLM has questioned the applicability of the

Sublette study to Colorado topography, and raised questions as to whether the decline in

abundance reflects reduced survival or change in distribution, what is incontrovertible is

that no NEPA document – neither in the applicable RMPs, nor BLM’’s 1991 Oil and Gas

Leasing EIS – addressed this information, which simply did not exist at that time. If

there are additional questions to be answered about the meaning of the Sublette results for

Colorado mule deer populations, those questions should be answered before leasing, not

after, with full opportunity for consideration of alternative courses of action under NEPA.


We believe that the Colorado BLM should follow the example of its Montana

counterpart, given the availability of substantial new information, and defer the leasing of

additional mule deer winter range until such time as BLM has the opportunity to

complete a comprehensive NEPA analysis of the effects of additional leasing on the


A. New Information Indicates that Timing Limitation Stipulations Are

Inadequate to Eliminate Significant Wildlife Impacts Because they Fail to

Account for the Effects of Ongoing Human Activity on the Lease Parcels.

The Timing Limitation Stipulations for the relevant February 2009 proposed lease parcels

apply only to construction and initial drilling, despite substantial evidence that ongoing

operations have continuous impacts on wildlife. BLM,

Oil and Gas

cases the stipulations will apply only in the first year of construction and drilling. This is

despite the fact that oil and gas operations can last for over twenty years. Colorado Oil

and Gas Conservation Commission,

Regulations of the Oil and Gas Conservation Commission of the State of Colorado

Testimony of the Colorado Division of Wildlife Regarding Timing Limitations 7 (Docket

# 0803-RM-02) (April 18, 2008). Ongoing operations are spread out both spatially and

temporally, continually displacing animals throughout their duration.

nothing to alleviate the cumulative effects of oil and gas development on big game

through habitat loss, avoidance of areas around development sites, and habitat


remaining unaffected habitat will predictably result in reduction in survival because of

increased animal density in these areas.

apply TLS stipulations on previously leased lands, the effects of the proposed TLS will

be undermined by operations on leased parcels not subject to the stipulations.

Finally, a 1996 General Accounting Office report indicated that ongoing stipulations like

the TLS are frequently either not applied as required or not properly enforced by BLM

field offices, suggesting that BLM may lack the on-the-ground capacity to effectively

manage stipulations like TLS that require careful, ongoing supervision.

Notice of Competitive Lease Sale:(December 12, 2008). The limited scope of these TLS means that in mostIn the Matter of Changes to the Rules and,Id. at 7. The TLS doId. at 8. Research indicates that increased densities of big game onId. Because BLM lacks the power to retroactivelySee id. at 9.See id. at 7.



A. Description of Affected Gunnison Sage-Grouse Habitat.

According to BLM sale notice data and Gunnison sage-grouse range data from the

CDOW, several of the parcels proposed to be leased contain Gunnison sage-grouse

production habitat. However, there are no Lease Stipulations attached to any of these

parcels that outline protection for sage-grouse in any manner. The only relevant

stipulation is the very general Exhibit CO-34, the Endangered Species Act (ESA) Section

7 Consultation Stipulation, stating that the lessee is to be alerted that there

for threatened, endangered, candidate, or other special status species. This stipulation

does not currently protect the Gunnison sage-grouse, which was determined to be “not


warranted” for listing under the ESA on April 18, 2006. Final Listing Determination for

the Gunnison Sage-Grouse as Threatened or Endangered, 71 Fed. Reg. 19,954 (April 18,

2006). This stipulation is therefore inadequate to protect Gunnison sage-grouse

production areas on the parcels in question.

Based on the

that there be no surface occupancy within 0.6 mile radius of Gunnison sage-grouse lek

sites. For oil and gas development activities that occur within a 4.0 mile radius of leks,

CDOW states that no such activities ought to occur between mid-March and late May in

production areas (through the end of June for non-production areas), and that noise be

specifically controlled (see the

Appendix I

may be habitatGunnison Sage-grouse Rangewide Conservation Plan, CDOW recommendsGunnison Sage-grouse Rangewide Conservation Plan,(2005)).

B. The Leasing of Gunnison Sage-Grouse Habitat, 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 BLM to take a

“hard look” at the environmental consequences of their proposed actions.

Sierra Club

without stipulations controlling surface occupancy—leases such as the proposed

February 2009 leases protested herein—agencies must assess the environmental impacts

of reasonably foreseeable post-leasing oil and gas development prior to issuance of the


Kleppe v., 427 U.S. 390, 410 n.21 (1976). When offering oil and gas leases for saleSee, e.g., Southern Utah Wilderness Alliance, 159 IBLA 220, 240-43 (2003);

Pennaco Energy, Inc. v. U.S. Dep’t of the Interior,

377 F.3d 1147 (10th Cir. 2004);

Conner v. Burford

(D.C. Cir. 1983).

The applicable RMPs do not adequately address substantial relevant information that has

become available since they were drafted, nor do the RMPs adequately address the likely

effects on Gunnison sage-grouse from oil and gas development being proposed in 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 BLM to preclude surface disturbance)

commits the leased parcel to development and conveys legal rights to the purchaser.

, 848 F.2d 1441 (9th Cir. 1988); Sierra Club v. Peterson, 717 F.2d 1409See

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.”

a significant commitment of resources is made at the time of lease issuance. This is an

action with readily foreseeable on-the-ground consequences.

Id. Where, as here, the lease right allows surface occupancy,See Conner, 848 F.2d 1441;

Sierra Club v. Peterson


As the Tenth Circuit Court of Appeals recently clarified,

v. United States Dept. of Agriculture

BLM from its obligation to analyze these consequences prior to leasing.

Energy, Inc. v. United States Dept. of the Interior

, 717 F.2d 1409, 1413 (D.C. Cir. 1983).Park County Resource Council, 817 F.2d 609 (10th Cir. 1987) does not excusePennaco, 377 F.3d 1147, 1162 (10th Cir. 2004).

Park County

Statement if and when it has prepared an extensive environmental assessment covering

the leases in question. This, however, is not the case; the February 2009 parcels appear

to 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 that has

become available since those plans were completed—including increased recreational

demand, greatly increased levels of mineral development, and declining populations of

Gunnison sage-grouse and new scientific information regarding the species’ vulnerability

to adverse effects from mineral development.

may allow the agency to forego preparation of an Environmental Impact

1. BLM Must Analyze New Scientific Information and Legal Developments

Not Available at the Time the Resource Management Plans Were


When the applicable RMPs were drafted, the Gunnison sage-grouse had not yet been

identified as a unique species. In 2000, the American Ornithologist’s union accepted the

Gunnison sage-grouse as a species distinct from the Greater sage-grouse. 71 Fed. Reg.

19,955. Since the Gunnison sage-grouse was identified, the population of the species has

declined, with the San Miguel population estimated at only 334 in 2005. 71 Fed. Reg.

19,959. Oil and gas development negatively impacts Gunnison sage-grouse habitat and

therefore populations, as discussed above.

According to recent CDOW testimony presented to the Colorado Oil and Gas

Conservation Commission regarding oil and gas impacts on Gunnison sage-grouse:

Infrastructure associated with oil and gas development (e.g., buildings,

compressor stations, power lines, roads, etc.) near sage-grouse leks causes habitat

loss and may cause loss of active nests and young broods, as well as indirectly

causing disruption, displacement, or reduced survival of males and females yearround.

There has been a widespread decline in both greater and Gunnison sagegrouse

distribution and abundance range-wide and in Colorado (Schroeder et al.

2004; CDOW 2005, 2008).

* * *

Research in Montana and Wyoming in coal-bed natural gas and deep-well fields

suggests that impacts to leks from energy development are discernable out to a

minimum of 4 miles, and that some leks within this radius have been extirpated as

a direct result of energy development (Holloran 2005, Walker et al. 2007

from areas with coal-bed natural gas development indicates that BLM’s current

0.25-mile buffer lease stipulation is insufficient to maintain breeding sage-grouse

populations in areas with full coal-bed natural gas development (Walker et al.



energy development. In a typical landscape in the Powder River Basin, 98% coalbed

natural gas development within 2 miles of leks was projected to reduce the

average probability of lek persistence from 87% to 5% (Walker et al. 2007

Only 38% of 26 leks inside of coal-bed natural gas development remained active

compared to 84% of 250 leks outside of development (Walker et al. 2007). Of

leks that persisted, the numbers of attending males were reduced by

approximately 50% when compared to those outside of coal-bed natural gas

development (Walker et al. 2007

A restricted surface occupancy buffer of 0.6 miles is largely designed to protect

only breeding males and females during the breeding season when birds

congregate around leks, and represents a bare minimum size for protecting sagegrouse

breeding populations from impacts of energy development. For example,

full-field coal-bed natural gas development with a no-surface-occupancy buffer of

0.6 mi. was projected to result in probability of only 14% that the lek would

remain active, compared to 85% in the absence of development (Walker 2008).

The size of no-surface-occupancy buffers required to protect breeding populations

may be underestimated because leks in energy development have fewer males per

lek and a time lag occurs (average ~4 years) between development and when leks

go inactive (Holloran 2005, Walker et al. 2007

occupancy buffer leaves approximately 97% of nesting habitat within 4 miles

open to energy development (0.6 mile lek buffers are unlikely to overlap because

few leks are that close to other leks) and would protect only 13-23% of habitat for

nesting females around leks (<45 of 340 nests in Wyoming, Holloran and

Anderson 2005; 118 of 518 nests in NW Colorado, CDOW data). Similarly, data

from conventional deep gas fields suggest that male lek attendance (an index of

local breeding population size) begins to decline once active development is

within approximately 4 miles (6.2 km) (Holloran 2005).

Data from coal-bed natural gas fields suggest that restricted surface occupancy

buffers around leks may need to be larger than 0.6 mile (e.g., 1-2 miles) for the

probability that a lek remains active to exceed 30%, assuming full-field

development outside that buffer (Walker 2008). Although effects of energy

development remain largely unknown in Colorado, if they are similar to those

observed in Wyoming, maintaining a bare minimum level of protection using a

0.6-mile restricted surface occupancy buffer around leks is extremely important.

Before the Oil and Gas Conservation Commission of the State of Colorado, Cause 1R,

Docket No. 803-RM-02, Testimony of Colorado Division of Wildlife Staff (Brett L.

Walker and Richard Kahn) Regarding Restricted Surface Occupancy Areas 1 (April 18,


This information about the necessary buffer zones to protect sage-grouse was not known

at the time the RMPs were drafted, and therefore those documents do not contain

adequate protections for the Gunnison sage-grouse (not yet even formally classified as a


separate taxon). Because of this inadequacy, BLM should not rely on the RMPs to meet

the requirements of NEPA documentation. The RMPs are clearly insufficient to

constitute the requisite “hard look” as required under NEPA and

does not account for current information about Gunnison sage-grouse.


the CDOW. BLM is directed to “delineate and field validate GUSG seasonal habitats,” to

implement a NSO stipulation within 0.6 mile radius of active leks, and to evaluate

“[s]pecific mitigation and exception criteria” to be “attached to the lease as stipulations

upon issuance.”

There are further Suggested Management Practices (SMPs) contained in the Rangewide

Conservation Plan, including that impacts on Gunnison sage-grouse should be minimized

through measures similar to those outlined above, as well as inclusion of a lease notice

that “This lease may require a full development plan as determined by an

interdisciplinary team.”

to the parcels protested herein.

The stipulations that are currently contained in the “Notice of Competitive Lease Sale,

Oil and Gas” do not adequately protect the Gunnison sage-grouse production areas

contained within these parcels. Exhibit CO-34, discussed above, does not include

restrictions on surface occupancy. Under the current rangewide conservation plan, in

Gunnison sage-grouse production areas, a 0.6 mile no surface occupancy (NSO) buffer

around leks should be observed.

a). Dataa). A 0.25-mi. buffer leaves 98% of the landscape within 2 miles open toa).a).a). A 0.6 mile restricted surfaceOverton Park since itGunnison Sage-grouse Rangewide Conservation Plan reiterates the suggestions ofGunnison Sage-Grouse Rangewide Conservation Plan at 237-38 (2005).Id. at Appendix L. BLM has not taken these actions with respectGunnison Sage-Grouse Rangewide Conservation Plan

236 (2005) (“On federal lands or areas with federal mineral rights, apply a lease

stipulation of NSO (no surface occupancy) within 0.6 (6/10ths) mile radius of active leks,

for new leases.”)

It is also essential to note that United States Fish and Wildlife Service’s (USFWS) not

warranted decision for the Gunnison sage-grouse acknowledged adverse impacts from oil

and gas development, but relied heavily on BLM deferral of leasing to conclude that

these impacts will not imperil Gunnison sage-grouse:

In summary, some Gunnison sage-grouse habitat is in areas with high

potential for oil and gas development, particularly in the San Miguel

Basin. A few studies on greater sage-grouse reported population declines

in response to oil and gas development (Braun et al. 2002; Lyon and

Anderson 2003), although specific causes for the declines were not

determined. A recent study of greater sage-grouse in Wyoming found that

as oil and gas development increased (Holloran 2005). Negative impacts

to active leks extended to a distance of 5 km (3 mi) from an active drilling

rig. Similarly, juvenile male recruitment to impacted leks also fell.

Nesting females avoided areas with high well densities, although site

fidelity to previous nesting locations may result in delayed population

response to the habitat changes associated with development. While some

birds were displaced by the disturbance, Holloran (2005) also found that

many sage-grouse discontinued breeding attempts, and others died at a

higher rate than birds from unaffected areas. He concluded that natural gas


field development contributes to localized greater sage-grouse

extirpations, but that regional populations levels, although negatively

impacted, are not as severely influenced.

Application of these impacts from gas development to the San Miguel and

Crawford populations and Monticello group could threaten their long-term

persistence. However, the immediate threat to Gunnison sage-grouse is

curtailed by BLM lease deferments. Additionally, available information

suggests that economic infeasibility of extraction will act to minimize the

likelihood this development will occur at a significant enough level to

imperil Gunnison sage-grouse.

71 Fed. Reg. 19,967 (emphasis added). Leasing of these parcels, absent adequate

safeguards in place to ensure protection of Gunnison sage-grouse, would contradict both

the assumption of USFWS’s finding and the recommendations of the 2005 Gunnison

Sage-Grouse Rangewide Conservation Plan signed by BLM.

C. The Leasing of Greater Sage-Grouse Habitat, Absent Full Examination of

the Environmental Consequences, Will Violate the National

Environmental Policy Act.

New information regarding the impacts oil and gas development on sage-grouse must be

assessed before leases are issued.

additional review, NEPA will be violated.


COC73436, COC73437, COC73448, COC73449, COC73450, COC73451,

COC73452, COC73453, COC73454, COC73455, COC73456, COC73457,

COC73458, COC73462, COC73463, COC73464, COC73465, COC73471,

COC73472, COC73473, COC73474, COC73475, COC73476, COC73477,

COC73478, COC73479, COC73480, COC73481, COC73482,

COC73483, COC73484, COC73485, COC73486, COC73487, COC73488,

COC73489, COC73492, COC73496, COC73497, COC73498, COC73499,



See discussion infra at pp. 6-8 . In the absence of thisPARCELS COC73430, COC73432, COC73433, COC73434, COC73435,

Numerous parcels proposed for leasing in February 2009 contain lands within 300’ of

waters supporting BLM sensitive species Colorado River Cutthroat Trout. Colorado

River cutthroat trout (CRCT) historically occupied portions of the Colorado River

drainage in Wyoming, Colorado, Utah, Arizona and New Mexico. Its current distribution

is now restricted to isolated headwaters and streams, and CRCT now occupies

somewhere between 1% and 14% of its historic range.

Conservation Team. 2006.

(Oncorhynchus clarkii pleuriticus) in the States of Colorado, Utah, and Wyoming

Colorado Division of Wildlife, Fort Collins (CRCT Cons. Ag.). The CRCT is classified

as a special status species in Colorado by the State of Colorado (CDOW), USFS and



Agreement in 2006, to “expedite implementation of conservation measures for [CRCT]

… as a collaborative and cooperative effort among resource agencies.”

implementation of the CRCT Conservation Agreement, the agencies intended to

eliminate or reduce threats to the CRCT that might eventually cause the species to be

listed under the Endangered Species Act, 16 U.S.C. 1531 et seq.

See generally CRCTConservation Agreement for Colorado River cutthroat trout.Id. at 3. Those entities, along with others signed the CRCT ConservationId. at 1. ThroughId.

The CRCT Conservation Agreement was signed in 2006. The CRCT Conservation

Agreement states among its goals: “To assure the long-term viability of CRCT

throughout their historic range” and provides that areas that “currently support CRCT

will be maintained.” CRCT Cons. Ag. at 3. Its stated objectives include securing and

enhancing watershed conditions and “[m]aximizing effectiveness of CRCT conservation

efforts by coordinating signatory efforts toward achieving” the agreement’s goals.

4. By signing the CRCT Conservation Agreement, BLM and USFS agreed “to ensure the

implementation of those conservation actions identified in the [CRCT Conservation]


Id. atId.

Lease stipulations for these parcels, however, limit protection for waters and riparian

habitat to Exhibit CO-28, for the purpose of “To protect perennial water impoundments

and streams, and/or riparian/wetland vegetation by moving oil and gas exploration and

development beyond the riparian vegetation zone.” Avoiding riparian vegetation only is

inconsistent with the CRCT Conservation strategy’s recommendation to “manage the

entire watershed”: “Impacts outside the riparian zone should be considered as part of

CRCT management. Land management agencies should work to mitigate adverse

impacts of watershed activities on water quality, instream habitat, channel morphology,

riparian areas, and population stability.” CRCT Conservation Strategy 18 (June 2006).

Newer BLM and other analyses take into account the potential adverse impacts from oil

and gas operations on watersheds and impose buffer zones beyond immediate riparian


A wide variety of industrial chemicals are commonly used or produced on drilling

pads or recovered and stored in pits for eventual disposal. Many of the chemical

formulations are of a proprietary nature and manufacturers are unwilling to reveal

the constituents of the additives. Two recent incidents in Garden Gulch resulted in

the release of acetone, and Benzene, Ethylbenzene, Toluene, and Xylenes (BTEX)

plus several other chemicals to a spring fed drainage. With the increased pace of

permitting and development in Colorado’s oil, gas, and oil shale fields, spills and

releases similar in nature to the Garden Gulch incident will increase in number.

The chemical constituents of some materials released from oil and gas

development related incidents are injurious to aquatic life. In a study of fish

sensitivity to petroleum, Moles et al. (1979) investigated the sensitivity of

Alaskan freshwater and anadromous fishes to Prudhoe Bay crude oil and benzene.

Salmonids (chinook, coho, pink, sockeye salmon; arctic char, Dolly Varden) were

consistently found to be the most sensitive species when tested with the watersoluble

fraction of Prudhoe Bay crude oil and benzene. Threespine sticklebacks


were the most tolerant, and slimy sculpins were similar to salmonids in

sensitivity. Median tolerance limits of the six salmonid species tested for benzene

ranged from 11.7 to 14.7

most deaths were found to occur within the first 12 hours. This rapid mortality of

fish exposed to aromatic hydrocarbons has been noted by other researchers

(Pickering and Henderson 1966; Benville and Korn 1977; Morrow 1974; Rice et

al. 1977) and serves to highlight the importance of immediate spill reporting and

rapid agency response to investigate spill effects.

* * *

The White River National Forest Oil and Gas Leasing Final

Environmental Impact Statement Record of Decision (ROD, 1993)

provides No Surface Occupancy (NSO) Stipulations for Gold Medal

fisheries to protect water quality and the recreational opportunities

provided by the fisheries. The ROD also provides NSO stipulations (350’

either side of the stream) for Colorado River cutthroat waters and a NSO

Timing stipulation that prohibits exploration, drilling, and development

activity from June 1 through October 1 for stream tributaries.

The State of Wyoming considers pit placement sites as “critical areas” if

they are located “…within five hundred feet (500') of wetlands, ponds,

lakes, perennial drainages or within a floodplain;..” Chapter 1. Section 2.

(kk) of Wyoming Oil and Gas Commission rules.

The ROD for the Interim Strategies for Managing Anadromous Fishproducing

Watersheds in Eastern Oregon and Washington, Idaho, and

Portions of California (USFS 1995) provides 300’ Riparian Habitat

Conservation Areas on either side of fish bearing streams.

Before the Oil and Gas Conservation Commission of the State of Colorado, Cause 1R,

Docket No. 803-RM-02, Testimony of Colorado Division of Wildlife Staff (Sherman

Hebein and Richard Kahn) Regarding Restricted Surface Occupancy Areas 39-41 (April

18, 2008).

By contrast, the RMPs applicable to this lease sale do not take into account newly

available information regarding Colorado River cutthroat trout conservation. Leases

should not issue within these watersheds absent adequate analysis and protective

stipulations to ensure sensitive native fishes will not be adversely affected by releases,

erosion, sedimentation, or other effects of new oil and gas development.





μl/liter. Static tests were used to simulate an oil spill andLEASES SHOULD NOT ISSUE IN IMPORTANT FISH AND

Additionally, we request that, as a matter of discretion, BLM defer leasing of areas that

contain Greater and Gunnison sage-grouse habitat, critical big game habitat and CRCT

habitat pending a determination of how the agency intends to address the Colorado Oil

and Gas Conservation Commission’s new rules regarding oil and gas development in fish

and wildlife habitat. While we recognize that BLM has questioned the applicability of

these rules to federal lands, we strongly recommend that, rather than inviting conflict by

issuing leases with differing stipulations, the agency should consider incorporation of the

pending state standards into the terms of federal leases. In the interim, rather than rushing

into these leases, BLM should, as a matter of sound policy, defer the issuance of new

leases in important fish and wildlife.


For the reasons stated above, parcels containing disputed fish and wildlife habitat are

inappropriate for mineral leasing and development. Existing pre-leasing analysis does

not comply with NEPA. Colorado citizens have raised substantial concerns about surface

impacts to big game, upland game bird and native trout resources.

On August 16, 2007, President Bush signed Executive Order (EO) 13443, the purpose of

which is “to direct Federal agencies that have programs and activities that have a

measurable effect on public land management, outdoor recreation, and wildlife

management, including the Department of the Interior …, to facilitate the expansion and

enhancement of hunting opportunities and the management of game species and their


things, EO 13443 requires BLM to:

See EO 13443 reprinted at 72 Fed. Reg. 46,537 (Aug. 20, 2007). Among other

where appropriate to address declining trends, implement actions that expand

and enhance hunting opportunities for the public;

Evaluate the effect of agency actions on trends in hunting participation and,

expands and enhances hunting opportunities, including through the use of

hunting in wildlife management planning; and

Manage wildlife and wildlife habitats on public lands in a manner that

governments, and consistent with agency missions, to foster healthy and

productive populations of game species and appropriate opportunities for the

public to hunt those species.

Leasing of the protested parcels will directly and adversely impact the very resources and

recreational and hunting interests EO 13443 is intended to protect. Yet, BLM has

provided no explanation of whether or how the proposed lease sale is consistent with EO



NWF and CWF respectfully request that the State Director withdraw these disputed

parcels from the February 12, 2009, competitive lease sale. In the event BLM proceeds

to offer these parcels, all prospective bidders should be informed of the pending protest.

Respectfully submitted on this 28th of January 2009,

On Behalf of the Colorado Wildlife Federation and National Wildlife Federation


Establish short and long term goals, in cooperation with State and tribal

Kathleen C. Zimmerman

Attorney for the National Wildlife Federation and the Colorado Wildlife Federation

2260 Baseline Road, Suite 100

(303) 441-5159


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


detail below, BLM should defer or modify the proposed leasing of lands: (a) containing

important mule deer, pronghorn and elk winter habitat and/or migration corridors; (b)

containing Greater and Gunnison sage-grouse production areas; or (c) within watersheds

supporting sensitive native cutthroat trout. As set forth below, the exercise of discretion

in this manner is appropriate and necessary.

The National Environmental Policy Act, 42 U.S.C. § 4332(C), requires BLM to take a

“hard look” at the environmental consequences of their proposed actions.

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