The leasing protest game
by April ReeseUpdated April 16, 2008
Last August, the Theodore Roosevelt Conservation Partnership celebrated a remarkable victory: At the Partnership's request, the Bureau of Land Management in Utah pulled 49,000 acres slated for oil and gas leasing from an upcoming auction.
"Every single parcel we protested was removed," says Joel Webster, who wrote the group's formal protest.
Webster and his colleagues at the Partnership, which represents 25 sportsmen's organizations, had high hopes that the victory marked a turning point for conservationists trying to keep the BLM from auctioning environmentally sensitive public lands to the oil and gas industry. But in February of this year, their optimism was deflated when the very same Utah BLM, in a very similar lease sale, pulled only 10 percent of the 74,000 acres the Partnership had targeted. Having submitted a 15-page report full of scientific citations and the BLM's own data detailing how gas drilling would harm critical habitat for mule deer, sage grouse and other wildlife, the group was left scratching its head.
"There's a complete inconsistency in how BLM offices are handling protests over wildlife in lease sales," Webster says.
The Partnership's experience exemplifies the ups and downs of the protest game over the past seven years. It's been a gritty, sale-by-sale struggle against an agency that, pushed by a bullish industry and supported by the Bush administration, has auctioned off rights to the fossil fuels underneath millions of acres in the West.
A High Country News analysis reveals that conservationists are making some headway. In Utah, for example, protesters have convinced the BLM to jettison 308 of 1,521 controversial parcels since 2001. But major victories are rare, and which challenges succeed appears to depend on which BLM office is in charge - and who is filing the protest.
The BLM's policy for putting federal parcels up for bid to energy companies dates back to the Mineral Leasing Act of 1920. For many decades, the program generated little controversy, only flaring up when oil and gas prices spiked or the BLM sought to lease lands valued by conservationists. This happened in the late 1970s, when the federal government put portions of national forests around Yellowstone National Park on the auction block.
Today's leasing push, though, is unlike any other in BLM history. Driven by record high prices for natural gas and oil, and faced with diminishing reserves in long-producing basins, drilling companies and other speculators began pressing the BLM in the 1990s for bigger, and more lucrative, lease sales. For the most part, they got what they asked for. During the Clinton administration, however, conservationists were largely silent on the matter, even though the option of protesting leases had existed since 1987. (Congress established the protest process in response to Reagan-era Interior Secretary James Watt's attempt to lease lands in federally designated wilderness areas.)
John Leshy, the Interior Department's solicitor from 1993 to 2001, says the Clinton years saw few protests because "we tried pretty hard to stay out of controversial areas." The Bush administration, he says, has done the opposite, readily leasing parcels in important wildlife habitat and wilderness-quality lands.
Over the past seven years, the BLM has leased 17 million acres in the five major oil- and gas-producing states in the Interior West, to the tune of more than $500 million. In Wyoming alone - ground zero for oil and gas development on federal lands - the agency leased about 5 million acres between 2001 and 2007, according to HCN's analysis of BLM data. And there is no slowdown in sight: Hundreds of thousands of acres of public land in the Interior West will be auctioned off this year.
The industry largely drives the leasing program. Companies nominate parcels in areas the BLM or the U.S. Forest Service (the BLM administers minerals management in national forests, too) have set aside as suitable for leasing in their land-use plans. The BLM announces that those parcels will be available at its next quarterly auction, and companies place their bids accordingly, paying anywhere from the federal minimum of $2 an acre to thousands of dollars an acre. The winning bidders get the right to tap the land's energy resources.
"The whole way the system is structured is advantageous to the oil and gas industry, to the point where the industry is now making the decisions for the BLM," says Dave Albersworth of The Wilderness Society.
BLM officials often say that just because a lease is issued doesn't mean a well will actually be drilled. The agency can insist that operators stay away from sensitive areas, such as wildlife breeding habitat. And if and when an operator does apply for a drilling permit, the BLM can attach additional caveats.
"BLM ensures that the development of energy resources is done in an environmentally sound manner on all lands we manage," says Duane Spencer, BLM-Colorado's acting deputy state director for energy, lands and minerals.
Conservationists, not surprisingly, disagree. A lease gives oil and gas companies a vested right to develop the lands, making it difficult for the BLM to say no later, says Steve Bloch, an attorney with the Southern Utah Wilderness Alliance. And the agency is very susceptible to pressure from industry, says Steve Belinda, who worked as a biologist for the BLM and Forest Service for 16 years in Wyoming and New Mexico before becoming head energy expert for the Teddy Roosevelt Conservation Partnership. "It used to be that companies knew they couldn't drill in the winter in deer and elk habitat," he says. "Now they are pushing to remove this impediment and drill all year round."
The BLM's aggressive leasing program is directly tied to a Bush administration that has made energy development the agency's highest priority. A few months after taking office in 2001, George W. Bush issued an executive order directing federal agencies to "expedite energy-related projects." Subsequent memos from the BLM's Washington headquarters to state-level managers reinforced the message, including a 2003 memo instructing state offices to not "unduly restrict access to the public lands for oil and gas development." Any stipulations placed on leases to mitigate impacts on wildlife had to be "the least restrictive necessary to accomplish the desired protection." The following year, the agency told state directors that any time they decided not to issue a lease, they had to provide a letter to the operators interested in the tract, stating the reasons for the BLM's decision.
"One reason I left (the BLM) was that I was told to do nothing but energy work even though my job was about wildlife," says Belinda, who quit the agency in February of 2006. "I spent 95 percent of my time on energy planning. I was told, 'If you don't like this job, get another one.' "
Not coincidentally, environmental and sportsmen's groups began filing lease sale protests around the same time the BLM began implementing its new policy. Only a few protests were lodged with the BLM in 2000 and 2001, but by 2004 the trickle had become a torrent. In Colorado, for example, 95 percent of the acres offered for lease in 2005 were protested, mostly over wildlife concerns. And 2007 was a banner year for controversy: In Colorado, for example, the BLM fielded more than 1,000 lease sale challenges, according to agency figures.
The protest option has become a well-used tool: These days, almost every lease sale announcement is followed by at least one formal protest. "We're pretty constant in getting a high percentage of our lease sales protested," says Terry Catlin, leasing team leader for the BLM's Utah state office.
And some state BLM offices are listening. Last November, the BLM in Utah canceled a lease sale altogether, before any formal protests had even been filed, reportedly in response to the concerns of state wildlife managers. In Colorado, about 5 percent of the protests typically have been upheld, with most of the contested parcels permanently removed from lease sales, according to Jim Sample of the BLM's Colorado state office. In November 2007, the BLM purged 23 parcels covering 31,000 acres in Grand County, Colo., in response to concerns from environmental groups, local officials and the Colorado Division of Wildlife about potential development of greater sage grouse habitat.
Yet just to the south, in New Mexico, a purged parcel is a rare thing. Environmentalists in the state challenged 933 parcels between 2001 and 2007, but the BLM withdrew just 16 of them. And six of those parcels were offered again in later sales.
"That's fairly common," says Greg Shoop, a senior mineral leasing specialist with the BLM's main office in Washington, D.C. "We determine that we have some additional work to do, and then we address that and re-offer the parcel." For example, the BLM might assuage wildlife concerns by placing stipulations on the lease barring drilling during breeding season, or in migration corridors.
The BLM rarely withdraws lands from lease sales in New Mexico because it tries hard to keep controversial parcels off the block in the first place, says Tony Herrell, deputy director of the BLM's New Mexico office.
Nicole Rosmarino, a policy analyst with WildEarth Guardians in Santa Fe who regularly files protests, disagrees. "In the majority of sales, there are significant resource values at stake, and the majority of the time, BLM proceeds with leasing," she says. "I would call (the BLM) marginally responsive to our protests."
The agency's unpredictable response to protests reflects a highly decentralized system in which each state office has a great deal of autonomy. Each field office is responsible for crafting its own resource management plan every 10 to 15 years, spelling out what uses will be allowed where, from grazing to oil and gas development.
Steve Salzman, deputy director of the BLM's Division for Fluid Minerals, says each office handles protests "in a slightly different fashion" because of differences in management plans.
"I guess it depends on how comfortable they feel with their land-use plans," which determine what lands are open for leasing and what lands are not, he says. For instance, offices that have up-to-date plans in place "feel more comfortable about their leasing decisions" and may be more likely to deny a protest. Those with out-of-date plans - which include several offices in Utah - are more vulnerable, he suggests.
But even in Utah, decisions about what is leased and not leased appear to be somewhat arbitrary, at least from the Partnership's perspective.
"What you get is an across-the-board inconsistency on how they deal with leasing in general," says Belinda. "And when leases are protested, it's even more inconsistent."
The Theodore Roosevelt Conservation Partnership is one of the most effective protesters in the West. Belinda credits the group's success to its focus on science and game species. During his agency days, Belinda realized that the BLM was ignoring its own studies about the impact of oil and gas development and other disturbances on wildlife species. The Partnership, which has 25 employees and a $4 million annual budget, now regularly cites some of those studies - as well as the latest scientific information from academia and state agencies - in its protests. The group also examines the adequacy of the management plan for the area to be leased, as well as the actual condition of the land itself. "We try to avoid the emotional attachment to pieces of land that some other groups have," Belinda says.
Sportsmen's groups may prove more persuasive than environmentalists partly because of their cultural affinity with BLM staffers, many of whom hunt and fish, says Bruce Baizel, an attorney with the Oil and Gas Accountability Project, a nonprofit watchdog organization based in Durango, Colo. "In Wyoming and Montana, and to some extent Colorado, the wildlife sector - hunters and anglers - is very significant."
That affinity may extend to state fish and wildlife agencies, which have begun stepping up pressure on BLM managers to keep crucial habitat out of lease sales.
"If a state officially protests, I think you'll see more of an effort on the part of BLM to address those concerns and pull leases, just because they're viewed as, well, other governmental entities as opposed to the general public," Baizel says.
In 2006, the Montana Game and Fish Department protested more than 10,000 acres slated for leasing in the Beaverhead Valley, home to a blue-ribbon trout fishery as well as sage grouse habitat. The BLM removed the parcels, and ever since, it has consulted with the department before offering new leases, says T.O. Smith, an energy specialist with the Montana Department of Fish, Wildlife and Parks. Last year, at the suggestion of the state, the agency deferred leasing on about 74,000 acres adjacent to the Charles M. Russell National Wildlife Refuge.
"Instead of them going forward and us formally protesting those leases, they went ahead and deferred any parcel within one mile of a sage grouse lek," Smith says. "It's better to get it early when it's leased than to wait until later when it's drilled." The U.S. Fish and Wildlife Service announced in February that it will consider listing the greater sage grouse under the Endangered Species Act. That gives the BLM one more reason to be more cautious about leasing the ground-dwelling bird's habitat, biologists say.
"State agencies typically don't want to see species listed. It can have a tremendous impact on the state economy," says Smith. "So you see even the governors wanting the state agencies to take a more active role in trying to help determine what gets leased." Yet for every acre the BLM pulls from a sale, thousands are auctioned off, including many that provide valuable wildlife habitat. In 2007, for example, the Partnership protested about 1 million acres offered for lease in Montana, Wyoming, Colorado and Utah, but succeeded in having only 180,000 acres removed - about 18 percent.
"I think it's no secret that (the gas companies) are trying to get as much as they can now, before a new administration comes in," says Belinda.
In response, frustrated environmental groups and even state wildlife agencies have begun trying to find new ways to keep the agency in check. Twice in recent years, they have taken their grievances to the Interior Board of Land Appeals, a panel within the Department of Interior, which oversees the BLM. Both the state of Montana and the Center for Native Ecosystems have won favorable rulings from the panel, which told BLM offices in Montana and Utah to look more closely at potential impacts to wildlife. Some groups are taking their challenges to court. Last year, the Partnership filed its first-ever lawsuit over a lease sale in Wyoming.
The best way to rein in the leasing frenzy may involve overhauling resource management plans. In Utah alone, six management plans are getting a facelift. Many BLM offices are currently revising old plans, and conservationists are urging the agency to take a hard look at which lands it designates for leasing to begin with.
"Taking measures to look at what the impacts could be on the wildlife prior to the lease sales is what needs to happen," says the Partnership's Joel Webster.
But Dave Alberswerth of The Wilderness Society is not optimistic. The plans he has seen so far continue to open more lands for leasing.
Ultimately, the best hope for keeping wells out of sensitive lands may be the 2008 election, conservationists say. All three presidential candidates have vowed to make renewable energy a priority. With the Bush administration on the way out, activists are hoping lease sale protests can soon be put back in the toolbox.
April Reese is a freelance writer based in Santa Fe, New Mexico.© High Country News