Mead’s protest reveals sage grouse conflicts

Only weeks after a Kumbaya moment with Secretary of the Interior Sally Jewell in which he celebrated sweeping federal greater sage grouse conservation rules, Gov. Matt Mead has protested those same measures.

Federal plans for 19.8 million acres in Wyoming “will have long-term and significant impact on energy, tourism, recreation and agriculture industries, as well as cultural resources, water resources and open space,” Mead wrote in a protest dated June 29. That’s different from proclamations he made when he joined Jewell in Cheyenne on May 28 to unveil conservation measures for federal resource plans across the West.

At that friendly joint appearance six weeks ago Mead celebrated the plans, saying, “We want to make sure we continue to have a strong economy…. With our federal partners, we believe we have found a way forward.” In his June 29 protest, however, Mead called the Bureau of Land Management’s proposal to withdraw 252,070 acres from mining and to consider another 894,060 acres for withdrawal from mineral leasing as “an unnecessary action.”

Mead’s protest includes a cover letter and five other letters specific to plans affecting federal lands and minerals in Wyoming. The governor’s protests are among some 250 others sent by conservation groups, industry representatives and stockgrowers. Together they reveal a wide gulf among those with an interest in the sagebrush sea, its wildlife, minerals and other resources. The U.S. Fish and Wildlife Service must decide by the end of September whether the greater sage grouse still warrants protection under the Endangered Species Act, a decision that will impact all those interests.

“There’s a large team working on addressing the protests,” BLM spokesman Mitch Snow said from Washington, D.C. on Monday. “Fish and Wildlife Service has been involved fairly heavily throughout the process. They’re aware of the protest letters.”

Protests need to be resolved before the plans are signed, “maybe sometime in September,” he said. The BLM is aware of the Fish and Wildlife Service deadline and is working toward meeting that. “I know there are ongoing discussions,” Snow said.

Gov. says comments were unheeded

Mead’s protest letter said the BLM did not address comments he made about a 2013 draft of the sage grouse conservation plans. BLM updated that draft in May. As part of the final plan, BLM released 1,010 pages of comments on the draft and the agency’s responses.

In commenting on the 2013 draft, Mead debated everything from authority over rulemaking to the amount of mitigation required for certain activities. He challenged the definitions of disturbance, the timing of protections for wintering grouse and whether drillers should shield birds from rig noise, among other issues.

In some instances, disagreements boil down to who has the better science. One conflict relates to the amount of surface disturbance that would be allowed in core grouse habitat. That limit has implications for energy companies that drill at higher densities when developing new gas plays in what are called “tight sands.” Higher density drilling often correlates to a larger amount of disturbed grouse habitat.

In one exchange documented by the BLM, Mead asserted that Wyoming’s 5 percent disturbance limit per 640 acres in core grouse habitat was better than the federal limit of 3 percent. Mead claimed “a more accurate picture of the actual existing disturbances within [greater sage grouse] habitat,” under Wyoming’s methodology. The BLM countered that its 3-percent limit was backed by “peer-reviewed scientific research of sage-grouse needs for continued existence.”

Energy industries, including the Petroleum Association of Wyoming and its allies, joined Mead among the protesters. BLM plans “will severely restrict oil and natural gas development on existing federal leases,” the PAW protest stated. “These restrictions elevate conservation of the greater sage-grouse above all other land uses in a manner wholly inconsistent with multiple use management.”

One BLM plan “inappropriately attempts to modify existing oil and gas leases, to unilaterally modify existing contract rights, to impose restrictions on existing leases that deny development or render development uneconomic,” the protest said. The Western Energy Alliance and the American Petroleum Institute trade groups joined PAW in the challenge.

New standards aren’t necessary to protect the grouse, the protest letter said. Existing federal laws should be sufficient to convince the U.S. Fish and Wildlife Service the “adequate regulatory mechanisms” required by a federal court are in place to keep the greater sage grouse from going extinct, drillers said. Other industry assertions claim flawed science and vague language that could lead to uncompensated takings by the government.

Valid existing rights

A fundamental conflict among conservationists, industry and the BLM centers on what sorts of restrictions could be imposed on development. The debate is particularly sharp on land that’s already been leased, but where drilling densities and other standards have yet to be set.

Energy companies say the federal government can’t impose new development restrictions on already-leased land. Furthermore, the companies are allowed to develop the landscape to the extent required to make a profit, they argue in the protest letter.

But the BLM plans “inappropriately” seek to “impose restrictions on existing leases that deny development or render development uneconomic,” the industry groups said. “The Trades,” as the group calls itself, “are concerned, for example, that BLM will attempt to impose sage-grouse noise restrictions and other required design features on existing leases inconsistent with lease rights granted,” the protest says. “The Secretary of the Interior and the federal courts have interpreted the phrase ‘valid existing rights’ to mean that BLM cannot impose [new] stipulations or [conditions of approval] that make development on existing leases either uneconomic or unprofitable.”

That’s a direct challenge to Jewell who said in May “these plans do not impact valid and existing rights.”

Environmental groups read the law differently, saying the government has the authority to impose all kinds of new rules. “It is probable that most conditions of approval short of a total prohibition on surface occupancy would be justifiable,” said WildEarth Guardians, which filed a protest with four other conservation groups.

The BLM even has the authority, and should use it, to keep drill rigs off the land if necessary, WildEarth Guardians said. “…Even a complete prohibition of surface occupancy is arguably consistent with the lease rights and reasonable expectation of the lessee,” the conservation protest said. Prairie Hills Audubon Society, Western Watersheds Project, Sierra Club, and Center for Biological Diversity also signed the letter.

What rights?

It is difficult to say what rights a company has once it leases federal property for energy development. That issue is a focus in the protection of 1,500–2,000 grouse at winter concentration areas in Sublette County. Jonah Energy, a company formed and owned by the private equity firm TPG, plans to drill 3,500 wells in the proposed NPL gas field that overlaps part of the winter concentration areas. How to protect those wintering grouse remains an unfinished piece of business in Wyoming and federal sage grouse conservation plans.

BLM’s latest winter measures are inadequate, WildEarth Guardians said. “BLM proposes only to apply timing limitations to industrial projects in winter concentration areas,” it said. “This is completely inadequate because industrial facilities constructed in the summer will remain throughout every subsequent winter.”

WyoFile asked the BLM whether there was a minimum amount of development the agency had to approve as a result of leases held by Jonah Energy. Its development plan calls for four well pads per 640-acre section across 141,000 acres. The federal agency would only respond to questions by email.

“While this may appear to be a simple question, it is actually somewhat complicated and has no definitive answer,” BLM Wyoming High Desert District spokesman Tony Brown wrote in an email. “The minimum number of wells in the NPL that the operator can drill to meet its existing rights is the number of wells necessary to develop the resource and meet minimum obligations.”

Brown outlined some of those obligations in his email. “Ultimately, the goal is to drill a well that produces hydrocarbons in paying quantities sufficient to cover minimum royalties and day-to-day operating costs,” he wrote. “Once a lease has a producing well that meets these criteria, the lease is said to be held by production.”

BLM is analyzing Jonah Energy’s request for 3,500 wells. A Jonah Energy spokesman has said that density is necessary to make development viable. Some conditions could weigh against Jonah Energy’s request, however.

“There are factors that ultimately limit the number of wells within a lease,” Brown wrote. “First, conditions on-site and lease stipulations control how and where development can occur. The aforementioned restrictions can either be physical (e.g. an area with high, unstable slopes) or be based upon biological resource concerns (e.g. an area limited by sage-grouse restrictions).”

Wyoming and the BLM, however, have not placed significant sage-grouse restrictions on the proposed NPL field. Wyoming’s Sage Grouse Implementation Team decided against recommending Gov. Mead expand core-area protections across NPL winter concentration areas. The BLM plan also excludes the proposed NPL field from the core-habitat protective zone.

A Wyoming SGIT subcommittee is addressing winter protections and the BLM will consider restrictions as it forges a development plan and environmental review of the gas field. “The BLM is fulfilling its obligations under the law by analyzing what the impact of those wells and associated facilities would be on the existing environment,” Brown wrote.

The conservation groups proposed their own standards. “For valid existing rights BLM should impose a 3 percent surface disturbance limit and one pad both calculated per square mile section,” the groups said. There also should be no disturbance “within 1.75 miles of the edge of wintering habitats, and no high-volume roads within 1.9 miles of wintering habitats.” It called for closing all wintering habitats to vehicular access between Nov. 30 and March 15.

Grazing plans also challenged

The protests cover both sides of grazing’s impact to sage grouse. The Wyoming Stockgrowers Association challenged the BLM’s definition of “disruptive activity.” One definition would limit human presence in certain areas to one hour in 24. “This has the potential to preclude necessary livestock management activities such as herding, doctoring of sick animals, placement of salt and the actions essential to proper grazing management,” the protest said.

Stockgrowers also protested references to voluntary retirement of grazing leases and said that BLM plans don’t properly recognize that “grazing is not a primary threat to sage grouse.” Provisions that state otherwise “may be subject to legal challenge,” the group said.

WildEarth Guardians want stockmen to leave more grass behind after grazing to hide sage grouse. The conservation group and its collaborators seek immediate imposition of a 7-inch objective for perennial grass height applied to a broader area than the BLM proposes. Such standards should be imposed immediately, not when permits come up for renewal, the groups said.

“All of these factors favor a course correction in land management across the sagebrush basins of the West, a shift away from maximizing the profits of private corporations and toward permitting only those activities that are compatible with maintaining healthy lands and wildlife populations,” the protest said.

Why are the BLM plans necessary?

Without the assurances provided in the BLM plans, Fish and Wildlife may have no choice but to begin protecting the bird as threatened under the Endangered Species Act. The agency determined in 2010 the greater sage grouse is warranted for protection. A court has said that because of a lack of “adequate regulatory mechanisms,” there are no assurances the bird will not go extinct. The BLM conservation plans in Wyoming and across the West — actually amendments to existing resource management plans — seek to address that deficiency.

One plan includes nine proposals for six BLM districts and three Forest Service units in Wyoming. Three other plans affect federal land and minerals in the rest of the state. Without them, when the Fish and Wildlife Service reconsiders the grouse’s status in September, it might not find the necessary “regulatory mechanisms.” Again lacking protective regulations, Fish and Wildlife would likely find the grouse in the same situation it was in 2010 and therefore that the bird still needs Endangered Species Act protection.

That protection would have a huge impact on drilling grazing and other activities across the West, conservationists, oil and gas drillers, wind developers, stockmen and conservationists agree. While extractive industries and stockgrowers might worry about their livelihoods, some conservationists fear a listing would generate a backlash against the Endangered Species Act.

Whether budget riders, or other laws Congress may pass, prevent the Fish and Wildlife Service from actually implementing its finding is another matter. An existing budget rider currently prevents a listing action.

Flickr Creative Commons photo by U.S. Department of the Interior.