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The central debate over the future of the Roan Plateau may be moot if a federal official is right.
Jamie Connell, manager of the Glenwood Springs Field Office of the Bureau of Land Management, said she believes federal law leaves the agency no choice but to lease for at least some oil and gas development on top of the plateau. Connell said the transfer language clearly calls for Naval Oil Shale Reserves 1 and 3 to be leased. NOSR 1 generally encompasses the plateau top.
"I think we would be questioned if we leased zero acres on NOSR 1," Connell said.
She said she believes the agency would open itself to possible legal action by the energy industry should it go along with the calls - made by local environmental groups, some local governments, and U.S. representatives John Salazar and Diana DeGette - to protect the plateau top from drilling.
Greg Schnacke, executive vice president of the Colorado Oil & Gas Association, agreed with Connell's reading of the law.
"We're not threatening any legal action, but we believe they are under obligation to lease it," Schnacke said.
In comments COGA and other industry groups submitted to the BLM Monday, they said that not leasing on top, or even deferring leasing on top as the BLM's preferred draft plan for the plateau proposes, would be breaking the law.
"Congress did not provide BLM with the option to choose not to lease or otherwise defer leasing above the rim," the groups wrote the BLM.
"With all due respect, that is incorrect. That is interpretation is wrong," countered Steve Smith, assistant regional director for the Wilderness Society.
Pete Kolbenschlag, Western Slope field director for the Colorado Environmental Coalition, thinks the BLM is inviting a lawsuit no matter what it decides about leasing on the plateau top. He said environmental groups also have had attorneys looking at the transfer language, and they disagree with the BLM and industry's interpretation.
Smith was a staff aide to former U.S. Rep. David Skaggs, D-Boulder, when Skaggs helped work on the transfer language, which shifted the plateau's management from the Department of Energy to Department of Interior. Smith said the act specifically calls for offering one or more leases in what became known as a "production area" in NOSR 3, below the plateau top.
It also calls more generally for leasing in NOSR 3 and NOSR 1. But Smith said he believes that if leasing occurs below the plateau top, that meets the law's intent.
"It did not say go lease specifically in NOSR No. 1," he said.
The BLM's preferred draft plan would provide for leasing on top, while also barring surface disturbance in some environmentally sensitive areas. The agency states in its draft plan documents that the transfer language "may require additional legislation" if the agency fails to make a significant portion of the plateau top available for leasing as Congress directed.
Said Connell, "There was certainly intent to have some of the land leased, or they wouldn't have told us to lease the land."
Wade Haerle, a communications relations manager in Grand Junction for Xcel Energy, worked on the transfer issue in the late 1980s and early '90s as an intern and then as a legislative assistant for Ben Nighthorse Campbell. Campbell was then representing western Colorado in the U.S. House of Representatives and later became a U.S. senator.
Haerle said the whole point of the legislation was to lease the plateau as soon as possible. Part of the thinking was to help out local communities that were at the low point of the economic bust that followed the oil shale boom of a decade earlier, he said.
"It was, how could we get the communities going forward again, and oil and gas was one of the places we looked."
Haerle said leasing on the Roan Plateau also was designed to provide a revenue stream to the Navy, which was reluctant to let go of the plateau for nothing, Haerle said.
"If they were going to give up their asset, which was the oil shale reserve, they wanted the money ... that went along with it," he said.
The thinking was that under the transfer, some of the federal royalty income from gas development would get credited to the Navy, Haerle said.
The point of transferring the land was that, under the Department of Energy, the leases would have been governed by the 1872 mining law, which meant the leased land could have been converted to private property, he said. Local communities objected to that idea, he said.
Under the Department of Interior, the BLM instead would keep the lands public and manage them for multiple uses.
The BLM is required to operate the lands under the Federal Land Policy and Management Act of 1976, which requires managing for an array of values, including environmental ones, Smith points out. He said the Mineral Leasing Act, which also governs leasing on the plateau, gives the BLM discretion to lease selectively.
The BLM's surface restrictions in its preferred draft plan could rule out gas development on portions of the plateau top, at least with current directional drilling technology, Connell said.
Haerle said he doubts that even the BLM's proposal to defer drilling on the plateau top until a threshold amount occurs around the base would stand up to a legal test. The transfer language called for leasing as soon as is practical, but deferment could mean it could take as much as 18 years for the plateau top to be leased, Haerle said.
Kolbenschlag said that if the BLM's interpretation of the law is right, then it considered an illegal draft alternative in its no-action alternative, which would continue the BLM's temporary policy of not allowing drilling on top.
But Connell said the BLM is authorized to evaluate options that would require legislative action. "You're just evaluating it. You haven't decided anything yet," she added.
She said the BLM also was legally obligated to consider a no-action alternative as part of its draft plan.
"It kind of contradicts itself right there," she said of federal law.
Kolbenschlag said he believes the BLM is trying to have things both ways. A preliminary draft alternative that would have barred drilling from the plateau top was left out of the draft plan, but agency officials insisted its components were spread among other draft plans. Kolbenschlag questioned how that could be the case if the BLM is saying the law requires the top to be leased, and is providing for leasing in all the draft plans but its mandated no-action plan.
Schnacke said he expects environmental groups to sue before the planning process is over.
"That is their tactic, to try to stop gas development, which is only going to hurt consumers," he said.
Said Connell, "It wouldn't surprise me if there were legal actions over this in the long run. I hope we come up with a solution that prevents that from happening, but it's part of the process."
Contact Dennis Webb: 945-8515, ext. 516
dwebb@postindependent.com
Jamie Connell, manager of the Glenwood Springs Field Office of the Bureau of Land Management, said she believes federal law leaves the agency no choice but to lease for at least some oil and gas development on top of the plateau. Connell said the transfer language clearly calls for Naval Oil Shale Reserves 1 and 3 to be leased. NOSR 1 generally encompasses the plateau top.
"I think we would be questioned if we leased zero acres on NOSR 1," Connell said.
She said she believes the agency would open itself to possible legal action by the energy industry should it go along with the calls - made by local environmental groups, some local governments, and U.S. representatives John Salazar and Diana DeGette - to protect the plateau top from drilling.
Greg Schnacke, executive vice president of the Colorado Oil & Gas Association, agreed with Connell's reading of the law.
"We're not threatening any legal action, but we believe they are under obligation to lease it," Schnacke said.
In comments COGA and other industry groups submitted to the BLM Monday, they said that not leasing on top, or even deferring leasing on top as the BLM's preferred draft plan for the plateau proposes, would be breaking the law.
"Congress did not provide BLM with the option to choose not to lease or otherwise defer leasing above the rim," the groups wrote the BLM.
"With all due respect, that is incorrect. That is interpretation is wrong," countered Steve Smith, assistant regional director for the Wilderness Society.
Pete Kolbenschlag, Western Slope field director for the Colorado Environmental Coalition, thinks the BLM is inviting a lawsuit no matter what it decides about leasing on the plateau top. He said environmental groups also have had attorneys looking at the transfer language, and they disagree with the BLM and industry's interpretation.
Smith was a staff aide to former U.S. Rep. David Skaggs, D-Boulder, when Skaggs helped work on the transfer language, which shifted the plateau's management from the Department of Energy to Department of Interior. Smith said the act specifically calls for offering one or more leases in what became known as a "production area" in NOSR 3, below the plateau top.
It also calls more generally for leasing in NOSR 3 and NOSR 1. But Smith said he believes that if leasing occurs below the plateau top, that meets the law's intent.
"It did not say go lease specifically in NOSR No. 1," he said.
The BLM's preferred draft plan would provide for leasing on top, while also barring surface disturbance in some environmentally sensitive areas. The agency states in its draft plan documents that the transfer language "may require additional legislation" if the agency fails to make a significant portion of the plateau top available for leasing as Congress directed.
Said Connell, "There was certainly intent to have some of the land leased, or they wouldn't have told us to lease the land."
Wade Haerle, a communications relations manager in Grand Junction for Xcel Energy, worked on the transfer issue in the late 1980s and early '90s as an intern and then as a legislative assistant for Ben Nighthorse Campbell. Campbell was then representing western Colorado in the U.S. House of Representatives and later became a U.S. senator.
Haerle said the whole point of the legislation was to lease the plateau as soon as possible. Part of the thinking was to help out local communities that were at the low point of the economic bust that followed the oil shale boom of a decade earlier, he said.
"It was, how could we get the communities going forward again, and oil and gas was one of the places we looked."
Haerle said leasing on the Roan Plateau also was designed to provide a revenue stream to the Navy, which was reluctant to let go of the plateau for nothing, Haerle said.
"If they were going to give up their asset, which was the oil shale reserve, they wanted the money ... that went along with it," he said.
The thinking was that under the transfer, some of the federal royalty income from gas development would get credited to the Navy, Haerle said.
The point of transferring the land was that, under the Department of Energy, the leases would have been governed by the 1872 mining law, which meant the leased land could have been converted to private property, he said. Local communities objected to that idea, he said.
Under the Department of Interior, the BLM instead would keep the lands public and manage them for multiple uses.
The BLM is required to operate the lands under the Federal Land Policy and Management Act of 1976, which requires managing for an array of values, including environmental ones, Smith points out. He said the Mineral Leasing Act, which also governs leasing on the plateau, gives the BLM discretion to lease selectively.
The BLM's surface restrictions in its preferred draft plan could rule out gas development on portions of the plateau top, at least with current directional drilling technology, Connell said.
Haerle said he doubts that even the BLM's proposal to defer drilling on the plateau top until a threshold amount occurs around the base would stand up to a legal test. The transfer language called for leasing as soon as is practical, but deferment could mean it could take as much as 18 years for the plateau top to be leased, Haerle said.
Kolbenschlag said that if the BLM's interpretation of the law is right, then it considered an illegal draft alternative in its no-action alternative, which would continue the BLM's temporary policy of not allowing drilling on top.
But Connell said the BLM is authorized to evaluate options that would require legislative action. "You're just evaluating it. You haven't decided anything yet," she added.
She said the BLM also was legally obligated to consider a no-action alternative as part of its draft plan.
"It kind of contradicts itself right there," she said of federal law.
Kolbenschlag said he believes the BLM is trying to have things both ways. A preliminary draft alternative that would have barred drilling from the plateau top was left out of the draft plan, but agency officials insisted its components were spread among other draft plans. Kolbenschlag questioned how that could be the case if the BLM is saying the law requires the top to be leased, and is providing for leasing in all the draft plans but its mandated no-action plan.
Schnacke said he expects environmental groups to sue before the planning process is over.
"That is their tactic, to try to stop gas development, which is only going to hurt consumers," he said.
Said Connell, "It wouldn't surprise me if there were legal actions over this in the long run. I hope we come up with a solution that prevents that from happening, but it's part of the process."
Contact Dennis Webb: 945-8515, ext. 516
dwebb@postindependent.com
