Courts might play a role

By John Colson

Sopris Sun Staff Writer

Regional public lands conservationists cheered last week when the BLM announced, as its “preferred alternative” under a recently completed Environmental Impact Statement (EIS), that it plans to cancel 25 controversial gas-drilling leases in the remote region known as the Thompson Divide area near Carbondale.

While the news generally was acknowledged as good by those who want to keep drilling rigs out of the relatively untrammeled Thompson Divide area, that outcome is by no means assured by the BLM’s announcement, according to experts on the situation.

“There’s some confusion about just exactly what the announcement was,” said Sloan Shoemaker, executive director of the Wilderness Workshop, which has worked for years to prevent drilling in the Thompson Divide.

He said he has been congratulated by many people for having won protection of the area from drilling rigs, but he said that is not, strictly speaking, true. At least, not yet.

The actual, final Record Of Decision is not due out until later this year, according to David Boyd, public information specialist with the BLM’s office in Garfield County.

Boyd, when asked about the chances of a change in direction between now that that final decision, told The Sopris Sun in an email, “The full range of alternatives is on the table until we sign a final decision (ROD),” meaning that while the BLM has identified lease cancelation as its “preferred alternative,” there are other alternatives that could possibly become fall-back measures.

Eight years

The BLM’s announcement is the latest chapter in a controversy that dates back more than eight years, when a coalition of environmentalists, ranchers, recreationalists, hunters and others began working to prevent drilling in the region surrounding the tributaries of Thompson Creek to the southwest of Carbondale.

The TDC began agitating to prevent oil and gas drilling in lands that until about 2008 were not broadly known as a single, cohesive part of the backcountry.

At one point, Wilderness Workshop and others sued the BLM over what the plaintiffs felt were illegally issued leases due to an inadequate level of environmental review in 1993, which was seen as being in violation of the National Environmental Policy Act.

A judge ordered the BLM to take another look at 65 leases, issued between 1995 and 2012 under that 1993 review, including 25 in the area now known as Thompson Divide.

It is these 25 leases that the BLM is moving to cancel, under the preferred alternative of the just completed EIS.

The preferred alternative is one of five alternative solutions, ranging from a “no action” alternative that would leave the current lease arrangements in place and intact (alternative one) to the outright cancelation of all 65 leases (alternative five).

The preferred-alternative decision, if finalized, would mean a certain amount of added restrictions and protections for some of the remaining leases in the list of 65 that presently are not producing any oil or gas, but would leave open to development a number of the remaining leases found in areas west of Thompson Divide that currently are the sites of producing wells.

If the 25 leases are canceled, Boyd confirmed, the federal government would reimburse the lease holders approximately $1.3 million, the amount the companies have shelled out for the leases. That would be just over half of the $2.5 million that the TDC at one point offered to pay the companies to abandon the leases.

Wilderness Workshop, in the meantime, has been pushing the BLM to offer greater protection to 27 leases that are outside the Thompson Divide but within the ecosystem that includes the Grand Mesa and Battlement Mesa regions toward Grand Junction, and that provide critical habitat for a variety of key Colorado species of wildlife.

“That’s what we think the agency should do,” said attorney Peter Hart, who works with the Wilderness Workshop, explaining that the U.S. Forest Service recently issued a management plan that offered more protection to the area of the 27 leases than the BLM’s decision. Because of a quirk in federal law, the BLM manages oil and gas resources under the surface of those lands, even though the USFS is in charge of surface management there.

Among the uncertainties surrounding the BLM’s EIS are the possible reactions from the industry, notably the drilling companies SG Interests of Texas and Ursa Resources of Colorado.

Boyd said that, if the cancelations move forward, the industry has no legal recourse because federal law clearly gives the agency the authority to cancel leases that it has deemed improperly issued.

But, Boyd said, the industry can file an appeal of the decision, either to the U.S. Department of the Interior’s appeal agency, called the Interior Board of Land Appeals, or in the federal courts.

SG Interests, in fact, has indicated to reporters covering the EIS that it is looking into a court appeal.

Such appeals can take years, Hart said, pointing to the 16-year fight over drilling on the Roan Plateau to the northwest of Rifle.

While he doubted that either an IBLA appeal or a court challenge to the decision would take that long, Hart remarked, “I guess I wouldn’t rule anything out.”

Published in The Sopris Sun on August 4, 2016.