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Industry Files Lawsuit Against Federal Sage Grouse Plan

Denver-based Western Energy Alliance (WEA) and the North Dakota Petroleum Council (NDPC) on Thursday filed a lawsuit challenging federal land-use plan amendments to greater sage grouse protections put in place last fall (see Daily GPISept. 22, 2015).

Filed in the U.S. District Court for the District of North Dakota, the WEA-NDPC joint legal action covers four records of decision signed by Interior Secretary Sally Jewell and Agriculture Secretary Tom Vilsack in seven of the 10 states included in the omnibus deal, which drew national attention. It pinpoints all but Wyoming in terms of the oil/gas producing states involved in the agreements.

In May 2015, BLM and the Agriculture Department's U.S. Forest Service (USFS) released 14 final environmental impact statements for proposed land-use plans on public lands in 10 western states: California, Colorado, Idaho, Montana, Nevada, North Dakota, South Dakota, Oregon, Utah and Wyoming (see Shale DailyMay 28, 2015). The plans amended up to 98 different BLM and USFS land-use plans.

The lawsuit is challenging the parts of the plans that allegedly do not conform to state plans for greater sage grouse mitigation programs.

"Before the federal sage grouse plans were finalized, oil/gas companies had implemented more than 770 specific protections for sage grouse, while reducing impact on the land by 70% with horizontal drilling and advanced hydraulic fracturing [fracking]," said Kathleen Sgamma, WEA vice president of government/public affairs. Stakeholders, including the federal agencies, had already stitched together successful protection programs for the ground-dwelling bird, she said.

"As a result, sage grouse populations have not only rebounded, but are stable over the long term," Sgamma said. "Local and state efforts tailored to actual conditions on the ground are effectively protecting the sage grouse and its habitat."

WEA and the North Dakota producers contend that the land-use plans coming out of Jewell’s announcement last September that the sage grouse would not be listed under the Endangered Species Act have proven "contentious.” Earlier legal action was taken in Idaho and Utah, along with several Nevada counties, by mining, local government, ranching, energy and water interests.

WEA and NDPC lawyers said no one is comfortable with the land-use plans:

  • Governors in the western states have argued the federal plans should defer to state efforts, and Western Governors' Association surveys have turned up $425 million worth of state investments collectively in sage grouse protections;
  • The land-use plans have cost the loss of 31,000 in jobs and $5.6 billion in lost annual economic activity, 9,267 jobs and $2.5 billion in the oil/gas sector alone; and
  • A demographic update by the Western Association of Fish & Wildlife Agencies showed the 2015 population of sage grouse has increased 63% during the past two years (see Daily GPIAug. 20, 2015).

Sgamma said that the federal plans "ignore sound science," and are "exaggerating" the impact of oil/gas development on sage grouse, failing to recognize that the energy production sector is coexisting with the grouse protections.

The lawsuit maintains that the federal agencies violated the U.S. Administrative Procedures Act by "unilaterally and substantively" amending BLM's oil/gas regulations, and as a result the public has been "shut out" of the decision-making process.

BLM and USFS have taken "draconian measures that go well beyond reasonable mitigation of impact," Sgamma said.

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