Rewards and risks loom for Colorado if BLM decisions are overturned

A controversial federal plan to allow energy development on 95% of public lands in the Uncompahgre region of southwest Colorado could be reviewed by the U.S. Bureau of Land Management if a federal judge’s ruling against the agency’s leadership stands.

Conservationists and legal observers say it’s too early to predict how that sweeping ruling will affect BLM holdings in Colorado and across the country. But there’s no guarantee that even a reviewed decision would yield a different result, while a wide-scale review process also opens the possibility that existing protections could be rolled back. 

Of five choices for a long-term resource management plan for the Uncompahgre Field Office, which oversees 900,000 acres of BLM land over parts of Delta, Gunnison, Ouray, Montrose and Mesa counties, the BLM on April 10 selected the plan that by some measures allows for the most oil and gas exploration. 

The choice was consistent with the Trump administration’s advocacy of an “energy dominance” agenda, which seeks to maximize fossil fuel exploration on public lands. Conservationists say that contradicts BLM’s traditional multi-use mission that is supposed to allow for recreation and conservation as well as energy exploration. 

In the court ruling last month in Montana, U.S. District Judge Brian Morris said that the BLM’s William Perry Pendley — who has never been confirmed by the Senate — was improperly exercising the authority of an agency director. Though Pendley has said he is no longer doing that, he is still in a leadership role as BLM deputy director for policy and planning. The agency isn’t reviewing decisions made during his tenure and is appealing the court ruling.

Federal judge boots William Perry Pendley from BLM acting director role

Even if more court orders go against Pendley and the agency, it’s not clear what the effects would be, particularly if President Donald Trump wins reelection next month.

If courts rule the Morris decision should apply to Colorado sites like Uncompahgre, the most likely remedy would be for the BLM to redo its evaluation, said Melissa Hornbein, a staff attorney with the Western Environmental Law Center. The organization has challenged the Uncompahgre plan and attempted to expand Morris’ decision to BLM decisions outside Montana.

But even without Pendley in charge, the agency could easily reach a similar plan the second time around.

“The result may or may not be the same,” Hornbein said. “If it’s invalidated on grounds of Judge Morris’ order and this administration stays in office, wins the election, it doesn’t resolve the concerns that we’ve raised, and we would just have to see what they did in taking another run at it.”

Browns Canyon

In some cases, applying Morris’ decision in Colorado could roll back protections that are part of other plans.

The BLM approved the resource plan for Browns Canyon National Monument, 95 miles west of Colorado Springs in Chaffee County, in July. The plan didn’t protect as much wilderness and areas of critical environmental concern as some environmental groups would have liked, but it did incorporate recommendations from local conservationists.

“If the (resource management plan) is revised, we would be concerned that it could open the door to changing the (resource management plan) in ways that we would not support,” said Joe Stone, a board member of Friends of Brown Canyon, a volunteer organization that advocates for protection of the area.

But Phil Hanceford, the conservation director for agency policy and planning at the conservation group the Wilderness Society, said a new plan would likely only expand protections because of the strong local support.

The initial plan was somewhat rushed, and further review might favor a more sustainable alternative supported by many local businesses and elected officials, he said. 

Further, the dispute will likely drag on past Jan. 20, when Democratic presidential nominee Joe Biden would take office if he defeats Trump.

“Elections matter and we may not have the same people looking at this that we did before,” Hanceford said. 

A Biden win would not entirely placate environmental groups, but it at least raises the possibility of better terms for them.

Biden has not weighed in on the Pendley issue or specific BLM policies, but his campaign says he “will restore and conserve 30% of our lands and waters by 2030, expand protections for our national monuments and historic sites, and make sure we lead the world in wildlife conservation.”

Oil and gas leases

There’s still doubt about whether Morris’ ruling will have any effect.

Kathleen Sgamma, the president of the Western Energy Alliance, a group that advocates for the oil and gas industry throughout the West, said the Morris ruling would not have an impact on the industry.

“We’re not worried about this ruling nor are we making contingency plans,” Sgamma wrote in an email. Environmental groups commonly fight lease sales, and most awarded since 2015 are still tied up in court, she said. 

Since Pendley took office, the BLM has made $2.3 million from selling oil and gas leases for about 123,000 acres in Colorado. Those leases, approved by BLM’s Colorado director, could be harder to overturn than decisions on which Pendley directly signed off.

While environmental groups will likely make Morris’ ruling an issue in other legal challenges, other judges “will rightly ignore it because it’s so out of line with basic precedent,” Sgamma said.

Others say it’s still an open question.

“You have the Judge Morris precedent out there and a Colorado judge could very well be persuaded to follow that precedent,” said Mark Squillace, a professor of natural resources law at the University of Colorado Law School.

But judges would have to be convinced that Morris ruled correctly that Pendley was illegally holding the authority of the BLM director and that decisions at the agency during the time in question should be overturned.

“There’s no guarantee that another court, another judge would agree with Morris on those issues,” Squillace said. “But it’s certainly plausible.”