(CN) – Conservationists on Wednesday squared off again with the federal government and oil companies over leasing decisions on endangered sage-grouse habitat – the latest step in a long-running environmental case.
At issue in this phase of the litigation is the Bureau of Land Management’s decision regarding six lease sales in Montana and Wyoming covering over one million acres.
Conservation groups – Montana Wildlife Federation, Wilderness Society, National Audubon Society, National Wildlife Federation and Montana Audobon – arguing that the decision violates the Federal Land Policy Management Act.
“All of the divestments stem from the BLM’s illegal interpretation of prioritization requirements, including apparently in the 2018 guidance memorandum, which turned the BLM into a passive administrator of the leasing process and did nothing to guide or encourage the leasing of sage-grouse habitat,” said Sharmeen Morrison, attorney, argument attorney.
Conservation groups challenged Trump administration policies that removed protections for greater sage grouse. The bird species is native to the western US and Canada and has been in decline for decades due to habitat loss.
In 2015, the Bureau of Land Management initially changed some of its land-use management plans to promote bird recovery. Three years later, under the Trump administration, the bureau revised the documents to include changes to resource limits and public comment periods.
In the seven years since the case was first filed, 10 appeals have been filed in the Ninth Circuit in connection with various court decisions mostly related to the voiding of certain lease sales in Wyoming and Montana. of the most recent decision from the Ninth Circuit ruled that the Bureau of Land Management violated its plans to protect the sage grouse and found that the Montana federal court properly vacated a Wyoming lease sale.
Citing the recent Ninth Circuit ruling, conservation groups argued to U.S. District Judge Brian Morris that the holding means the Bureau of Land Management must take affirmative action to guide and encourage oil and gas leasing away from sage-grouse habitat.
In five of the lease sales, the agency “passively agreed to lease virtually any named parcel to the company without regard to how it affected sage-grouse habitat,” Morrison argued.
But the agency they did not agree.
“The plaintiffs argue that the BLM should have done more, but at a certain point, the BLM should have some leeway to interpret its own management plans and what is sufficient to comply with them,” said Luther Hajek with the Justice Department.
The agency argued that it reviewed each parcel for potential impacts to sage grouse and removed parcels where oil and gas development could result in significant impacts to the birds and their habitat. Plus, the agency can’t know at the leasing stage which lots might be developed and can’t predict every possible damage.
The agency argued that if Morris, an appointee of Barack Obama, were to find in favor of the conservation groups, the court should not vacate the leases but instead detain them.
Vacatur would seek the return of more than $109 million in bonus offers and rental deposit fees, Hajek said.
The Bureau of Land Management last year tried to voluntarily reverse its decisions on six Montana and Wyoming lease sales, but Morris denied that movement.
The federal government also accused conservation groups of waiting too long to challenge the lease decisions, which were made in 2019 and 2020, resulting in oil and gas companies making significant lease investments.
The oil and gas companies that intervened in this case as defendants agreed with this argument.
“Detention is warranted at this stage because the devastating consequences, both economic and environmental, are far greater than in the first stage,” said Malinda Morain, an attorney with Beatty & Wozniak representing the Western Energy Alliance.
Continental and Chesapeake argued that the conservation groups lack standing to bring the challenge in the first place.
“They can’t just say that oil and gas in general hurts our interest,” said William Sparks, attorney for Jones Walker.
Wyoming also intervened as a defendant and argued that the court should consider how the state would be affected if the leases were vacated.
“The loss of over $50 million in revenue, which has already been spent for public use, will be a devastating consequence for the state,” said Shannon Leininger with the Wyoming Attorney General’s Office.
But conservation groups pointed out that the economic impacts are only greater in this phase of the litigation because it involves more leases sold in sage-grouse habitat than leases involved in earlier phases of the case.
“The seriousness of BLM’s legal violations was much more significant in phase three than in phase one, and the damages to sage grouse from those leases are much greater in phase one and phase three,” argued Michael Freeman, attorney for Earthjustice.
Morris said he hopes to have an opinion by the end of the month.
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