Predicting Future Court Decisions: “Gap Leases” and the Thompson Divide

10th Circuit Court of Appeals.. to what extent should agencies “roll the dice” in advance of court decisions?

Here’s another story about “gap leases.” These are leases issued at various times when the 2001 Rule was not the “law of the land”.
Below is a brief summary from this Forest Service document.

The Roadless Area Conservation Rule (RACR) prohibits, with some exceptions, road construction and timber harvesting across 58.5 million acres of the National Forest System. The rule was published in the Federal Register on January 12, 2001 (66 FR 3244).* Ten lawsuits were filed challenging the rule. In May 2001, a preliminary injunction barring implementation of the rule was issued by a federal district court in Idaho. The Ninth Circuit Court of Appeals reversed that ruling, and the RACR became effective in April 2003. In June 2003, the State of Alaska settled its claims regarding the RACR and after further rulemaking the Tongass National Forest was exempted from the RACR (68 FR 75136). Two cases in North Dakota that involved the RACR were eventually settled in March 2007 and three others were dismissed.
However, in July 2003, a federal district court in Wyoming upheld the State of Wyoming’s challenge to the RACR holding that promulgation of the RACR was procedurally flawed under NEPA and substantively illegal under the Wilderness Act. The court set aside the rule and permanently enjoined the rule. The decision was appealed to the Tenth Circuit Court of Appeals, but the court declared the case moot and vacated the Wyoming order after the 2005 State Petitions Rule was promulgated.

Gap leases occur in other states, but attention has been focused on Colorado, seemingly earlier as a negotiating point with groups who wanted the leases withdrawn as part of the Colorado Roadless Rule. There was even an earlier effort with the FS and the State to buy out these leases.

According to some legal sources on the government side, there were various stages during the periods when the 2001 Rule was enjoined, with various letters and interim directives, and each lease might have different facts associated with it. The easiest way to find out their legal status would be to take them all to court as individual leases.

There must be some reason folks aren’t doing that.

A key dispute within the dispute over proposed oil and gas development in the Thompson Divide area involves dozens of leases issued in national forest roadless areas there in 2003.

That was two years after President Bill Clinton, in one of his final acts as president, declared a national forest rule to protect roadless areas from development.

Peter Hart, staff attorney with the Carbondale-based Wilderness Workshop conservation group, has some questions about the legality of leases issued without restrictions on surface disturbance after Clinton’s action.

“We’re in the process of sorting all that out,” he said.

Such leases in the Thompson Divide area and elsewhere have gained the nickname of “gap” leases because they were issued at a time when the legal status of the national roadless rule was in question because of prior court rulings later being upheld.

This seems odd to me (they are still “sorting it out”) as there are only so many of these… spreadsheets of them have been circulating since 2007 or’s not clear that anything about the status has changed in the last five years except that the 2001 Rule came back. However, it does not seem to me that the issue is what are the rules now, but what were the rules when the lease was let (did the FS and BLM follow legal procedures correctly when leasing?).

I would argue that the legal status was not really “in question” as the 10th circuit had enjoined it being used…it seems relatively clear.

However not Hart, who said:

We think the 2001 rule has been the rule of law since 2001,” Hart said.

So how can the FS predict the ultimate outcome of court decisions, and follow the future rules rather than the current court decision at a time? It would have been illegal to not follow Brimmer’s decision. I have never really understood this line of argument.

He said a Colorado-specific roadless rule implemented this year “explicitly preserves limitations on surface use” for leases issued in roadless areas after 2001.

My understanding is that the Colorado Rule says “if it is determined that the leases’ restrictions or lack thereof were made legally, then they stand.”

Again, it seems to me like the simplest thing to do is just take the individual leases to court and get them clarified.

Another thing I don’t quite understand is:

Leased lands with no-surface occupancy rules would have to be reached by directional drilling. Hart said he’d like to see the Forest Service go further by not leasing for oil and gas at all in roadless areas, to prevent these areas from being ringed by well pads and other facilities, isolating wildlife habitat. A White River National Forest planning alternative the Forest Service agreed to also consider in response to the concerns of the Thompson Divide Coalition would allow for no new leasing in lands under the forest’s jurisdiction in that area, including in existing lease areas if those leases expire.

But if you don’t want leases inside roadless areas, because there would be wellpads going directionally from outside, you should know you could also have wellpads outside for leases on that land outside the roadless areas, so outside wellpads are not prevented. And the solution to “ringing” the area with wellpads would be looking at the impacts of each development during NEPA. It seems unlikely that wellpads would be cheek to jowl in a ring around the roadless area.

Also this is interesting..

Antero Resources has proposed drilling up to four wells on “gap” lease acreage in the northwest portion of the Thompson Divide, but under its proposal the well pad would be placed outside the roadless area. How any initial drilling on gap leases in the Thompson Divide area occurs will be important because of the precedential impact it will have on future drilling on such leases in the area, Hart said.

Antero wants to drill outside the roadless area, and that isn’t good because of …the precedent on drilling?

Gary Osier is a former Forest Service employee who served as forest minerals specialist for the White River National Forest,

For all the focus on roadless areas, Osier said Thompson Divide also has a lot of areas with roads, and “is probably one of the most multiple-use pieces of ground on the whole (White River National) Forest.”

He said he’s “walked virtually every foot” of the area, and it has high potential for natural gas and some oil development.

“What’s interesting to me is there’s only a little teeny bit of the whole (White River) forest that has high potential, and that’s the only part that we identified originally (for leasing), this whole Thompson Divide thing. I think most of the people who are screaming and hollering about it have never been there,” he said.

My instincts follow those of Gary.. it all doesn’t really add up. There must be more to this than meets the eye. For previous posts on gap leases, see this, this, and this, and my blog post here on the Range Blog of High Country News and especially the comments on that..

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