BLM director eviction opens potential to reverse other decisions
[ By Katherine Nettles ]
Gunnison County commissioners are looking at various ways to pursue legal opposition toward the Bureau of Land Management (BLM) Uncompahgre Field Office (UFO) Resource Management Plan. All commissioners have expressed interest in doing so, but a clear path is not yet paved.
The BLM’s latest plan impacts 675,800 acres of BLM land and 971,220 acres of federal subsurface “mineral estate,” in which surface rights may be privately owned but subsurface rights belong to the federal government, within the Uncompahgre area. The plan was signed in April 2020 and Gunnison County has formally opposed all drafts. The plan includes the North Fork Valley within Gunnison County and would allow extensive fracking without providing what is considered adequate opportunity for public input under established National Environmental Policy Act (NEPA) guidelines, and commissioners have discussed that other areas within the plan would also affect Gunnison County indirectly.
The county has made three arguments against the final draft: that it violates NEPA by selecting an alternative without full public notice and full vetting; that it violates the MOU [memo of understanding] that the BLM signed with Gunnison County; and that it fails to address Gunnison sage grouse management issues and its effect on the future of the species.
The plan has replaced the former one from 1989, and is expected to endure for the next 30 years or more.
County attorney David Baumgarten and deputy attorney Matthew Hoyt updated commissioners last month that they had looked into joining challengers after a federal court in Montana had ruled to invalidate two aspects of a different BLM Resource Management Plan in that state, and had invited additional aspects from the federal agency’s policymaking to potentially invalidate even from other states. But Baumgarten said it turns out it will not work to have that judge invalidate the Uncompahgre Plan Update as well.
“We heard about that decision, and thought that it might be an opportunity to have that judge invalidate the UFO RMP… that it could go from Colorado to Montana, then from Montana to federal court,” said Baumgarten. But he concluded it would be better to wait on such a move and look at other alternatives. “There were ‘enough uncertainties’ involved…so we let that opportunity expire,” he said.
The Montana cases had also led to the larger federal court case that ruled on September 25 to remove Trump administration appointee William Perry Pendley as director of the BLM. The decision that Pendley’s appointment was illegal may invalidate hundreds of agency decisions made during his tenure. October 6 was the closing of the 10-day comment period on the case during which the Department of the Interior and Montana’s governor, who filed the lawsuit, could file briefs to support or challenge Pendley’s work at the BLM.
“We are turning over every rock that we can identify… to protest this UFO,” said Baumgarten. “This one is not going to play out, but we are still looking.”
Commissioner Liz Smith agreed with the idea “to leave no stone unturned.” Commissioners Roland Mason and Jonathan Houck also agreed.
There are other opportunities to challenge the RMP that include litigation within Colorado, particularly surrounding the Trump administration’s “inappropriate appointment of the BLM director,” said Hoyt. He suggested reaching out to the plaintiffs in that Colorado case as well.
“Speaking for myself, I would say yes,” said Smith of the idea.
Houck said, “Some of the things that we put in our protest… around not adequately considering the oil and gas development impacts, is being addressed by Senate Bill 181.”
SB 181 passed in 2019 to ensure that oil and gas development operations in Colorado are regulated to protect public health, safety, welfare, the environment and wildlife resources.
“Some of the provisions we were concerned about for Gunnison sage grouse were in San Miguel,” continued Houck. “We don’t have sage grouse in our geographic portion of the Uncompahgre field office, but some of our neighboring counties do. Therefore, the listing ties us all together. It seems as though the service with their recovery plan is identifying some of the things that we saw as weaknesses in the RMP. And of course we are looking out for agriculture in there as well, and grazing.”
Both Hoyt and Houck raised the question of what would replace the RMP if it were completely thrown out.
“To David’s point, if you throw out the current RMP and go back to the other one it’s not like the other one was a management plan that served a lot of our concerns for the people in our community. I do think that it will be interesting to see, and the timeliness of what happens with the decision in Montana will give us an opportunity to see if Colorado has the ability or the desire to take an action. I think that’s all we can do right now, given that the 10-day comment period ended today. Does that pass muster?” asked Houck of the board.
Baumgarten concluded, “We’re watching for any opportunity, and then trying to evaluate each opportunity as it comes along and report that to you.”