
Court restores oil leases on sage grouse habitat pending agency review
Monique Merrill
(CN) — A Ninth Circuit Court of Appeals panel determined Friday that the U.S. Bureau of Land Management violated its own plans to protect the threatened sage grouse by leasing 1.9 million acres of the bird's habitat to oil and gas companies but also ruled to restore the some of the previously vacated leases, citing the disruptive economic impact of canceling them.
The panel said a 2018 instruction memoranda by the agency established during the first Donald Trump administration was inconsistent with its 2015 plan made during President Barack Obama's time in office to prioritize reducing impacts on sage grouse habitat.
While the three-judge panel found that a Montana court correctly vacated a Wyoming lease sale, five lease sales — encompassing 677 leases and $125 million in lease revenue — on threatened bird habitat across multiple western states previously vacated by an Idaho court should be restored.
"The disruptive consequences of lease vacatur in the Idaho case significantly outweigh the seriousness of the agency’s procedural error," U.S. Circuit Judge Marsha S. Berzon wrote, referencing a change from the 2018 instruction memoranda that shortened the public comment period required for the National Environmental Policy Act review of the land and for protecting lease sales under the Federal Land Policy and Management Act.
The panel found the bureau violated the acts when it completely eliminated or severely shortened public participation periods during lease sales without offering an explanation behind the change.
“Here, the agency’s decision to prioritize administrative efficiency and expedition of oil and gas production over deliberative decision-making that takes into account informed public comments is in direct tension with NEPA,” Berzon, a Bill Clinton appointee, wrote. Berzon was joined in the majority by Chief U.S. Circuit Judge Mary H. Murguia, an Obama appointee.
However, the court blocked surface-disturbing activity while the agency reconsiders its leasing decisions on remand to become compliant with public participation requirements.
Still, the panel did conclude in both cases — one filed in the U.S. District Court of Boise and led by Western Watersheds Project and the Center for Biological Diversity, and the other, filed in Montana's federal court and led by Montana Wilderness Federation and the Wilderness Society — that the leases conflicted with federal requirements to prioritize oil and gas leasing development outside of sage grouse habitat.
The panel agreed with the Montana federal court that the bureau violated the Federal Land Policy and Management Act and affirmed its vacatur of the June 2018 Wyoming lease sale, which constituted 158 parcels covering over 192,000 acres. Berzon cited another change in the 2028 memorandum that added new language on sale procedures specifying that oil and gas leases outside of sage grouse habitat should be prioritized only where there was a backlog in the administrative capacity.
“The government identifies no reason why BLM’s efforts to protect sage-grouse habitat should come into play only when the agency is facing resource constraints,” Berzon wrote, noting that the interpretation contradicts the plan’s goal.
The agency is permitted to defer consideration of lease sales when the land is in sage grouse territory and discretion to determine which parcels it will offer for sale, the judge noted.
“In some manner, the government must take an affirmative role in encouraging oil and gas leasing in non-sage-grouse habitat, rather than just passively processing expressions of interest, all of which may target, and pretty much have targeted, sage-grouse territory,” Berzon wrote.
U.S. Circuit Judge Danny J. Boggs, Chief Judge of the Sixth Circuit Court of Appeals sitting on the Ninth Circuit panel by designation, largely agreed with his colleagues but would hold that the Montana court incorrectly determined the lease sale at issue violated the FLPMA.
Boggs thought the majority and Montana court imposed a prioritization requiring he characterized as “stretching the meaning of the term “priority” past its limits.”
Environmental groups celebrated the court’s findings.
“This decision is a major step forward in protecting sage-grouse habitat and ensuring that science, not politics, guides wildlife management,” Frank Szollosi, executive director of the Montana Wildlife Federation, said in a statement.
In 2015, the Bureau of Land Management first amended several of its land use management plans to promote the recovery of sage grouse habitat, a bird species native to western North America that has been in decline for decades due to habitat loss. Three years later, under the Trump administration, the bureau revised the documents to include the changes to resource constraints and public comment periods.
The 90-page order comes nearly a year after the appeals court heard oral arguments from oil and gas companies affected by the vacated leases.
In late 2018, a federal Idaho court requiring the bureau to implement Obama-era provisions involving public involvement and protest for oil and gas leasing processes.
Leases on land outside of federally recognized areas of sage grouse habitat and leases that had already begun were not affected by the injunction. The Idaho court also granted partial summary judgment and upheld terms from the injunction while setting aside lease sales in Nevada, Utah and Wyoming that applied Trump-era provisions.
The panel also ruled that two intervening oil companies affected by the orders that were not parties to either case at the time of the rulings — Anschutz Exploration Corporation and Chesapeake Exploration — were adequately represented by a trade group and the court had jurisdiction over vacating the leases despite the pair not being originally parties to the cases.