Lawsuit Seeks to Change Secretive BLM Policy
NORTH FORK VALLEY – One aspect of the secrecy surrounding oil and gas leasing in America is being challenged by a local group.
Activists with the Hotchkiss-based Citizens for a Healthy Community and their law partners, the Western Environmental Law Center, filed suit on June 26 in U.S. District Court, in Denver, to force the Bureau of Land Management and its parent, the Department of the Interior, to release the names of those who nominate public lands for oil and gas development.
BLM policy is not to release the names of nominators, those individuals and energy companies who file Expressions of Interest, the process used to place lands into quarterly lease auctions, until after the auctions are complete. Residents of the North Fork Valley and the three towns of Paonia, Hotchkiss, and Crawford, were facing the lease sale of 30,000 acres in 22 parcels, many of them adjacent to the towns and their water supplies, at the sale this August. When the parcels were announced in December of last year CHC asked, through the Freedom of Information Act, who had nominated those parcels. But the BLM, citing “competitive harm” to nominators, refused to divulge their identities.
As it happened, the BLM’s Uncompahgre Field Office made a surprise announcement on May 5, 2012 withdrawing all 22 North Fork parcels from the August sale. The only reason given was to allow the agency time for “additional analysis.” (Press statements from CHC cited “overwhelming public opposition” to the leases as reason for the BLM’s change of heart.)
Despite the withdrawal, which is likely temporary, CHC and WELC went ahead with their lawsuit under the FOIA and the Administrative Procedure Act (APA).
According to CHC Director Jim Ramey, the suit aims not only to help his organization in its effort to protect the North Fork’s organic farming, recreation, real estate and other economies, it also seeks to change the BLM confidentiality policy nationwide.
“The public has a right to know which companies are nominating our public lands for oil and gas development,” Ramey said. “This is just another example of how the government bends over backwards to protect the interest of an industry with deep pockets instead of the interests of the public.”
WELC Attorney Kyle Tisdel said in a CHC release: “The public is not allowed to know who these ghost entities submitting the EOIs are until after the lease sale is held – depriving the public and organizations such as Citizens for a Healthy Community from engaging in the BLM’s decision-making process in a fully-informed basis. As Justice Brandeis once wrote, ‘Sunlight is said to be the best of disinfectants.’”
The Taos, New Mexico attorney handling the case for CHC, Megan Anderson, told The Watch she is not aware of any earlier challenges to the secrecy built into the nominating process. “I don’t know why,” she said. “It may be that the focus has been on the developers of the leases after they have acquired the leases.” Sometimes the bidders are the energy companies themselves; sometimes they are speculators looking to sell the leases to drillers at a later time.
Anderson pointed out that “some of the biggest developers in the [North Fork and Gunnison County] area do not have the best track record of fair bidding.” Gunnison Energy Corp., and Texas-based SG Interests VII Ltd., each paid $275,000 in fines this year for conspiring to rig a lease sale in the Ragged Mountains.
“It would be nice to know if it was BP, or Encana (Enron Canada), or Gunnison Energy that had nominated your parcels,” Ramey said.
When CHC asked in December for the North Fork nominators’ names, the BLM sent copies of the EOIs with the names redacted, blacked out, citing their 1995 policy of “competitive harm.”
But neither the CHC’s Ramey nor attorney Anderson understands the BLM’s reasoning. “The lease sales are, by definition, competitive,” Anderson wrote in an email. “BLM seems to be arguing that disclosure of the names will somehow cause substantial competitive harm to the nominator because other parties will know that the nominator is interested in that parcel. However, at the lease sales, the bidders must bid on the parcels against one another (thus disclosing their identities) . . . So we are not sure how disclosure of the name of the nominator beforehand would result in substantial competitive injury to that party.”
Ramey even suggested that revealing the nominators’ names ahead of time could potentially result in more competitive bidding, and thus a better return for the owners of the mineral rights, the American public.
CHC’s lawsuit seeks to “establish that Defendants [BLM and Department of Interior] have violated the FIOA and Administrative Procedure Act[s].” And asks, first, that they provide the requested EOIs and, second, that the court “enjoin Defendants from relying on an invalid regulation.”
If successful the suit could force a nationwide change in the way public lands are nominated for energy development.
As of press time, the Uncompahgre Field Office of the BLM, in Montrose, had not responded to a request for comment.