Thompson Creek area at risk under roadless rules
November 13, 2008
CARBONDALE ” As Colorado moves forward with the U.S. Forest Service to adopt a state-specific set of rules to govern roadless areas, doubts remain as to whether the Thompson Creek Roadless Area near Carbondale will be protected from roadbuilding on natural gas drilling leases sold in the early part of this decade.
About 25 to 30 gas leases have at least some overlap with the Thompson Creek Roadless Area, said Terry McCann, a spokesman for the U.S. Forest Service Rocky Mountain Region in Golden. The size of these leases varies from five acres to 1,900 acres, McCann said. The roadless area, as inventoried by the U.S. government, covers 18,498 acres.
The natural gas leases themselves will be there regardless of which roadless management regime is ultimately in place, but the question of whether the owners can build roads and well pads in the roadless area is still unanswered.
“If there’s already a lease, that will remain, under the current Colorado roadless rule,” McCann said.
While the Forest Service owns the land, the Bureau of Land Management, or BLM , an agency of the U.S. Department of Interior, controls the mineral rights under all federal land, and sells mineral leases on that land if not constrained by any regulations.
The Thompson Creek roadless area was inventoried under Roadless Area Conservation Rule that was instituted in early 2001 by the Clinton Administration. That rule was later overturned by a federal district judge in Wyoming. It was reinstated by another federal district court in San Francisco in 2006, but in July of this year, the Wyoming court again enjoined it from taking effect, McCann said.
In 2007, Colorado Governor Bill Ritter presented a petition to the U.S. Forest Service requesting the agency to recognize a Colorado plan for protection of roadless areas as an “insurance policy” to protect roadless areas if the Clinton era rule is permanently repealed.
Sloan Shoemaker, executive director of the Carbondale-based Wilderness Workshop, doesn’t think the Colorado plan will be necessary. He said the Colorado plan probably won’t be done before the new administration takes office in Washington, and different attitudes there may dictate a change in the management of roadless areas.
“I think there are opportunities out there that Gov. Ritter won’t have to take out an insurance policy,” Shoemaker said.
Further, Shoemaker said, there’s some doubt whether the leases were issued legitimately.
“Those leases have a cloud over them,” Shoemaker said.
Judge Laporte, in the U.S. District Court of Northern California, ruled in February, 2007, that, among other things, “the U.S. Forest Service is enjoined from approving or allowing any surface use of a mineral lease issued after January 12, 2001, that has not already commenced on the ground and which would violate the Roadless Rule,” according to the Website of Heritage Forests Campaign, an environmental group.
“Laporte’s intent was that her ruling was retroactive, and that the Roadless Rule was inappropriately overturned,” Shoemaker said. “So it’s unclear what the status of those leases is ” they weren’t sold with consideration of roadless values. There’s a question whether those leases are valid.”
The leases were issued between conflicting opinions by two different federal district courts, Shoemaker continued, and those differences need to be settled either by a higher court or by Congress.
After the Clinton era roadless rule was first thrown out, the U.S. Bureau of Land Management issued natural gas drilling leases on large acreages in the Western United States. Leases were sold on most of the Thompson Creek roadless area in 2001 and 2003, according to the Website of Citizens for Roadless Area Defense, or C-RAD, a group that advocates preservation of roadless areas in the White River National Forest.
Reinstatement of the Clinton rule would have forbidden roadbuilding to develop those leases, but under the Colorado plan protection from roadbuilding is not at all certain.
According to the C-RAD Website, the Colorado petition was actually drafted under Gov. Bill Owens after the Roadless Rule was first thrown out. As a result of the Owens Administration’s favorable stance toward extractive industries, the Colorado plan does not offer the same level of protections for roadless areas as the original Roadless Rule. The Colorado petition contains exceptions that will allow roads to be built for oil and gas drilling, mining and access to grazing.
Currently, roadless areas such as the Thompson Creek Roadless Area don’t have much protection at all. Because of the July injunction against the Clinton Roadless Rule and the fact that the Colorado plan is not in effect yet, the only protections for roadless areas on National Forest lands are written into forest management plans on each of the separate national forests in Colorado, McCann said.
While the current Colorado administration is moving forward with its own plan to govern roadless areas, officials are pondering those gas drilling leases.
Mike King, deputy director of the Colorado Department of Natural Resources, said he doesn’t want protection of roadless areas to be disregarded by the energy industry because leases were obtained between court opinions.
“These ‘gap leases’ are a concern,” King said. “We’re trying to get our arms around just what tools are available to constrain these leases.” McCann sees a less flexible situation under the Colorado petition.
“If those authorize surface disturbance,” he said, “that won’t change. Those are valid rights on those leases.”
Some leases were issued with restrictions that will prevent roadbuilding anyway, and it may be that some of the leases in the Thompson Creek area have these, King said. Many leases in sensitive places such as roadless areas were issued with what the BLM calls “no surface occupancy stipulations.”
“If they were issued without NSO stips,” King said, “there’s a question as to whether those are legal. They never should have been issued without stips.”
Dan Sokal, natural resource specialist for the U.S. Forest Service in Glenwood Springs, said certain leases, including those along Middle Thompson Creek, have stipulations that no roads or well pads can be constructed within 350 feet of streams, and can’t be used during the warm months. Some other leases, those at lower elevations, characterized by scrub vegetation, are restricted to protect winter habitat for elk, he said.
The Forest Service took comments on a draft environmental impact statement on Colorado’s plan for managing roadless areas. The comment period ended Oct. 23 and the comments are now being reviewed by both the Forest Service and the DNR.
McCann said a high percentage of the 103,000 comments received were form letters, prompted by organizations with one point of view or another. Only 1,100 individually composed messages were received.