Challenges to Wyoming Mining Tossed Out

(CN) - Coal-mining leases in Wyoming's Powder River Basin did not come at the expense of protecting an elk herd and other natural resources, a federal judge ruled.

As the country's largest source of coal, the basin in northeastern Wyoming is an increasingly popular mining area. It includes a 100,655-acre Fortification Creek Planning Area that is home to various species of wildlife, particularly a nonmigratory herd of Rocky Mountain elk that state officials introduced from Yellowstone in the 1950s. The Fortification Creek herd had approximately 210 animals as of 2011.

In August 2008, the Bureau of Land Management proposed instituting a "prescriptive, phased development approach" to mineral leasing that would require oil and gas companies to meet specific criteria to obtain a lease.

Energy companies claimed the new process would make it harder for them to get leases in the planning area, while conservation groups worried about the effects of mineral development on the elk herd.

In 2011, the bureau issued a finding of no significant impact (FONSI) and opted to take a "performance-based approach" that would require companies to comply with performance standards intended to protect the elk herd and its habitat but give them more latitude in conducting their operations.

Since Yates Petroleum Corp. had wanted to develop an area known as the Queen B POD within Fortification Creek, the bureau also issued an environmental assessment and FONSI authorizing all but one well of its 16-well project.

The Powder River Basin Resource Council and others challenged the proposed action and the Queen B POD approval, but U.S. District Judge Barbara Rothstein granted the government summary judgment Friday.

In this case the bureau properly assessed how mining would affect the elk herd, and its scope of such effects was not improperly limited, according to the ruling.

"Given the crucial importance of security habitat to the viability of the elk herd, it was reasonable for BLM to focus on loss of security habitat in the southern range ... because that is the type of habitat 'necessary for maintaining the herd," Rothstein wrote.

The environmentalists had claimed that habitat loss in the southern range combined with habitat loss from the performance-based approach would cause a 33 percent loss of total habitat in the herd's yearlong range and a 20 percent loss of crucial habitat, exceeding the 20 percent significance thresholds established by the bureau's 2008 Draft Elk Monitoring Plan.

Rothstein noted, however, that the draft monitoring plan is merely a draft report, and that the thresholds it established were not intended for use in a significance-analysis under the National Environmental Policy Act.

The proposed action also does not threaten the elk herd's viability, the court said.

Rothstein also emphasized how the bureau's adaptive management plan enables it to choose one of six mitigation measures related to performance standards aimed at protecting elk populations and habitat. The plan also creates a monitoring team to ensure compliance, according to the ruling.

"The point of such an adaptive approach is that BLM can address impacts at the time specific projects are proposed and choose the best mitigation measures to use based on the feedback from the monitoring team. Because BLM's adaptive management plan sets forth 'quantifiable criteria' that the monitoring team will track to ensure that a 'viable elk herd utilizing their seasonal ranges during the appropriate seasons is maintained across the [planning area]," Rothstein wrote.

With the possible mitigation measures to meet those performance goals, "the court concludes that the BLM has taken a sufficiently hard look at the environmental consequences of the proposed action," she added.

The environmental assessment for the Queen B POD was sufficient under NEPA as well, according to the ruling.

Though all 1,509 acres of the project area lie within the elk herd's yearlong range, the bureau found no loss to the security habitat and said the elk population would not face significant effects because they seldom use the area consistently, the court noted.

Environmentalists had argued that the projected density of 4 or more wells per square mile would harm the elk herd, but Rothstein emphasized that this density will not be in the herd's winter or parturition ranges.

She also concluded that the bureau studied how coal-mining development would affect water resources, and credited the agency's decision not to supplement the environmental assessments with a NEPA impact survey.

The bureau additionally took into account a report from the U.S. Geological Survey on the cumulative impacts of coal development on water and biological resources, according to the ruling, noting that its assessments addressed "changes to stream morphology and fish and vegetation habitats."

Although the bureau did not account for existing lease stipulations, which, among other things, prohibit surface disturbance and limit activity during certain times of the year, the court found no issue with its rejection of the "no action" alternative.

"It would have been very difficult to take into consideration the effects of each stipulation in each lease," Rothstein worte. "The analysis would also have been complicated by the fact that BLM can grant a waiver, exception or modification of these stipulations, meaning that some of the stipulations do not have easily predicted or consistent impacts. Therefore, BLM's decision not to take into account the lease stipulations, particularly the NSO stipulations, was reasonable, and the plaintiffs have not demonstrated that the absence of the lease stipulation from the 'no action' analysis was significant enough to mislead the public or the decisionmaker [sic] about the impacts of the alternatives."

The Wyoming Outdoor Council and National Wildlife Federation were also plaintiffs.

The defendants were the Bureau of Land Management and its Secretary Sally Jewell; Donald Simpson, secretary of the Department of the Interior; and Duane Spencer, who manages the Buffalo Field Office for the bureau.

Wyoming and Oil & Gas Co. Inc. intervened as defendants.

U.S. District Judge Richard Leon cited Rothstein's decision in shooting down a different challenge to the Powder River Basin coal leases Monday.

In that case, the plaintiffs were WildEarth Guardians, Defenders of Wildlife and the Sierra Club.

Leon found that the groups had standing but that their claims were without merit because the bureau had fully complied with NEPA guidelines and other relevant statutes in assessing how greenhouse-gas and ozone emissions would affect local air quality and climate change, among other things.

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