With court ruling on disputed Utah leases, focus shifts to BLM plans

A three-and-a-half-year battle over the Obama administration's cancellation of 77 oil and gas leases in Utah may finally be settled, but a broader war over the future of millions of acres of public lands in the state appears far from finished.

The 10th U.S. Circuit Court of Appeals' decision late Wednesday to uphold Interior Secretary Ken Salazar's move to rescind the leases in early 2009 was a significant victory for conservationists, who argued the parcels would allow drilling rigs to overshadow national gems including Arches and Canyonlands national parks, Desolation and Labyrinth canyons, and the White River (EnergyWire, Sept. 6).

But the groups that cheered the court's decision are continuing a separate legal battle to overturn the six Bureau of Land Management plans in Utah that made those leases available in the first place.

"The plans are wildly unbalanced in favor of oil and gas development and off-road vehicle use," said Steve Bloch, an attorney with the Southern Utah Wilderness Alliance, one of 10 environmental groups that filed lawsuits in late 2008 challenging the plans.

The state of Utah, its counties, a handful of energy companies and motorized recreation groups said they disagree and have intervened in the case in defense of the George W. Bush administration plans.

"Once the plan is done, it should be followed," said Harry Souvall, public lands section chief in the Utah attorney general's office, noting the plans took several years and millions of dollars to develop. "We felt we had a strong interest in finality."

At stake are six resource management plans finalized within weeks of one another in 2008 covering more than 11.5 million acres, many of them surrounding icons like Arches and Canyonlands and Dinosaur National Monument as well as remote rivers and archaeological sites.

The management plans, known as RMPs, which are revised by BLM roughly every 15 years, determine where and how oil and gas and motorized recreation should be managed, in addition to other uses including grazing, hunting, hiking, and wildlife and resource protections.

Groups including SUWA, the Wilderness Society, the Sierra Club, the National Parks Conservation Association and the Grand Canyon Trust in December 2008 filed a lawsuit challenging the Moab, Price and Vernal RMPs, arguing the plans failed to consider a variety of environmental impacts including air quality, off-highway vehicle use, wilderness values and climate change.

A second complaint challenged the Monticello, Kanab and Richfield RMPs using many of the same arguments. That lawsuit targeted BLM's decision to allow 8,500 miles of off-highway vehicle trails across roughly 4.5 million acres of land, among other issues.

While environmental groups and federal attorneys at one point entered "intense settlement negotiations," those talks have broken off, Bloch said (E&ENews PM, Dec. 6, 2010). Since then, interveners successfully argued to have the case transferred from Washington, D.C., to the federal district court in Salt Lake City, where it is being overseen by Judge Dale Kimball. Environmentalists opposed the move, arguing the development of the RMPs was influenced by political operatives in Washington.

Bloch said that the case now has a scheduling order and that litigants will first focus on the Richfield plan, which covers roughly 2.1 million acres in southern Utah.

According to environmental groups, the planning area includes wilderness-quality lands such as the Dirty Devil River and its labyrinthine side canyons, thousands of Native American archaeological sites, and the Henry Mountains, the last mountain range in the lower 48 states to be mapped.

While the BLM plan opens 90 percent of the area, or about 1.9 million acres, for motorized use, the agency failed to ensure motorized travel would protect soils, vegetation, wildlife, water, cultural resources and the area's primitive character, the groups said.

In addition, plaintiffs will question how BLM decided to reject the majority of river segments it said were eligible for wild and scenic designation, as well as how it concluded that about 0.3 percent of the 886,000 acres eligible to become areas of critical environmental concern (ACEC) should be officially designated, among other points.

A BLM spokeswoman declined to comment on the case, citing agency policy on pending litigation.

"Something that's becoming very clear is these were political decisions, these were decisions being made in Washington, D.C.," Bloch said. Kathleen Clarke, who was director of BLM at the time the planning process began, is now public lands director for Utah Gov. Gary Herbert (R), Bloch added.

He said he's disappointed that the administration has not agreed to revise the plans, given that Salazar agreed that the oil and gas leases it allowed were too close to national parks, monuments and other sensitive lands and that the plans are generally weighted too heavily in favor of energy development and off-road vehicle use.

Salazar, Deputy Interior Secretary David Hayes and former BLM Director Bob Abbey "are all on record at various times in 2009 and 2010 saying the RMPs were flawed, that they should not be the final word on how to manage these spectacular lands," Bloch said. "And yet at the end of the day the plans are all still in place, they're being fully implemented by the Salazar and Obama administration, which is deeply frustrating to us."

But the state and counties say overturning the RMPs would dash several years of public engagement, waste millions of dollars spent planning and increase uncertainty for public lands users.

"[Environmentalists] would like to cut it up and tear it up and throw it away," said Mike McKee, a commissioner in Uintah County, which helped develop BLM's Vernal plan.

"It looked at all the values on the property ... soils, crust, climate, just about everything that can be evaluated," he said. "To essentially set these plans aside and go a total different direction, it doesn't give certainty to the public lands process."

In addition, overturning the plans would likely spark a fierce political backlash from Utah politicians, some of whom have used their political leverage to extract concessions from the Obama administration.

For example, former Utah Sen. Bob Bennett led his GOP colleagues to block Hayes' confirmation during a Senate vote in May 2009, citing anger over the 77 leases (Greenwire, May 13, 2009). The agency's review of the leases prompted sweeping oil and gas leasing reforms at Interior that have raised the ire of Republicans in the West while garnering praise from conservationists.

McKee said he's frustrated that the 10th Circuit's ruling has been portrayed as an affirmation of Salazar's decision to rescind the leases.

The court's decision basically upheld a late 2010 ruling by U.S. District Judge Dee Benson in Salt Lake City that concluded a lawsuit challenging Salazar's actions was filed too late to return the leases to their original owners (Land Letter, Sept. 9, 2010).

But, McKee said, "Judge Benson did rule in favor of the counties and oil companies when he stated Ken Salazar lacked the statutory authority to cancel those leases."

Indeed, Benson said that while Salazar lacked the legal grounds to yank the leases after the competitive lease sale, the lawsuit challenging his decision was filed too late.

Looking forward, Souvall, in the attorney general's office, said counties have a lot to lose if the plans are revised to restrict energy development.

"It's very important to us for jobs, for revenue to both local as well as state entities as well as simply overall energy security for the country," he said.