June 17, 2005

Land Letter

Court calls on BLM to consider Montana development's effects on 2 species

Eryn Gable

For the second time this year, a federal court in Billings, Mont., has ruled that a statewide environmental study by the Bureau of Land Management violated the National Environmental Policy Act by failing to consider a phased development alternative for coalbed methane production in the Powder River Basin.

The latest decision comes in a case brought by the American Lands Alliance, Biodiversity Conservation Alliance and George Wuerthner that dealt with greater sage grouse and black-tailed prairie dog habitat.

"BLM shot itself in the foot and squandered the opportunity to thoughtfully develop domestic energy resources while protecting wildlife," said Erik Schlenker-Goodrich, an attorney with the Western Environmental Law Center in Eugene, Ore., which represented the wildlife groups.

Lands in the Powder River Basin may hold major coalbed methane resources, but Erik Molvar, a wildlife biologist with the Biodiversity Conservation Alliance, said the federal government must consider common-sense measures to control CBM development if it is serious about keeping sage grouse off the Endangered Species List and protecting Montana's wildlife. The court found that BLM failed to consider these measures, he said.

Molvar said U.S. Magistrate Richard Anderson's ruling is important because it sets the groundwork for a Wyoming district court judge to find in the groups' favor in an identical sister case. "Judges often look to the decisions of their peers in other circuits for guidance on how to interpret the law, and they do often try to be consistent," he said.

But BLM spokesman Greg Albright indicated the June 9 ruling would have little practical effect, since Anderson had previously ruled that the agency did not adequately consider phased development.

Anderson had already found that BLM violated NEPA in February in companion lawsuits brought by the Northern Plains Resource Council and the Northern Cheyenne. As such, he ordered the agency to consider a phased development alternative.

That supplemental study is expected to take from 18 months to two years to complete, Albright said.

Schlenker-Goodrich noted that all three lawsuits attacked BLM's study from different angles -- including concerns about water quality, wildlife and tribal issues -- but the results were the same. Anderson's ruling affirms that "BLM's decision was flawed and deficient, and it really shows how the way the agency is pursuing CBM development is more akin to a house of cards than reasonable and proper energy development," he said.

However, the judge did find in favor of BLM on several of the claims brought by the different groups. In the Northern Plains and tribal cases, in fact, Anderson observed that as a whole, BLM's study "adequately considered the impacts of CBM development in the Powder River Basin." And he rejected the plaintiffs' contentions that BLM should have prepared one document for the entire basin rather than separate studies for Montana and Wyoming (Land Letter, March 3).

Anderson noted that the wildlife groups raised similar claims, though they focused on the effects of CBM development on sage grouse and black-tailed prairie dogs.

The judge did not offer an opinion on the groups' claims that BLM did not take a "hard look" at the effects of CBM development. But he did rule that "further environmental review on a phased development alternative necessarily requires another examination of CBM development on sage grouse and prairie dogs," so those issues may be resolved by the agency's supplemental analysis.

Albright said BLM will look at additional data as it relates to phased development, but the agency is standing by its original analysis. "We're fairly confident the wildlife portions of that document were more than adequate," he said.