American Oil and Gas Reporter - September 2015 - 167

His wife's savings helped put him through
school. They then moved to Lafayette,
La., where they didn't know a soul. Following this, Olds "quit the best job I
ever had" and moved his wife and their
two kids to Ohio to chase the Morrow
County boom.
"She never knew when I was going to
be home-weekends, holidays, etc. But
she stayed with me through thick and
thin," Olds expressed. "This award is for
you."
Connie and Jerry celebrated their 60th
wedding anniversary in August.
Choosing one recipient for an award

is always very difficult, but Jerry Olds'
service and what he has accomplished
throughout more than 50 years in oil
and gas needs to be celebrated. The message from all his friends and colleagues
resonates in similarity: Jerry's passion
for and knowledge of the industry, his
willingness to share and mentor those
around him, and his astounding work
ethic make him a shining example of an
Oilfield Patriot.
A full video of the 2015 OOGA Oilfield
Patriot Award presentation may be viewed
at https://www.youtub.com/watch?v=1KDgwO1pBH4.
❒

LYNDSEY KLEVEN is communications coordinator for the Ohio Oil &
Gas Association, where she promotes
awareness of the organization, oil and
gas industry, and legislative affairs, and
moderates the organization's internal
and external communications. Before
working at OOGA, she was a communications specialist at Connected Nation,
overseeing public outreach, and driving
awareness and support for the proliferation of broadband technologies. Kleven
earned a B.A. in communication from
the University of Cincinnati.

Industry Protests Federal Species Policy
WASHINGTON-Federal policies governing plants and animal species are being
criticized on two fronts.
Kathleen Sgamma, vice president of
government and public affairs for the
Western Energy Alliance, told Congress
that Endangered Species Act "sue and
settle" agreements took policymaking decisions away from the public and gave
them to special interest groups in Aug. 4
testimony before the Senate Committee
on Environment and Public Works' Subcommittee on Superfund, Waste Management and Regulatory Oversight.
In a separate action, the Independent
Petroleum Association of America and
American Petroleum Institute filed comments to the U.S. Fish & Wildlife Service
regarding migratory birds. The two groups
question whether the service's proposed
programmatic environmental impact statement is consistent with the Migratory
Bird Treaty Act (MBTA), and whether
its provisions do not single out the oil
and gas industry over other human activities that could threaten avian species.
USFWS published its proposed rule
in the May 26 Federal Register, saying
it was evaluating the potential environmental impacts of a proposal to authorize
incidental takes of migratory birds under
the MBTA. The agency said it was considering several approaches to regulating
incidental take, including issuing general
or individual authorizations for some
types of hazards to birds within particular
industry sectors; writing memoranda of
understanding with federal agencies authorizing incidental take from those agencies' operations; and/or developing voluntary guidance for industry sectors regarding operational techniques to avoid
or minimize incidental take.
In comments submitted to USFWS,
IPAA and API argue that the MTBA's
plain language unambiguously prohibits

only human actions directed against birds.
Nothing in the act covers passive impacts
that result from lawful activities, they
say.
Two federal circuit courts agree that
the act's plain language doesn't include
that prohibition. The U.S. Court of Appeals
for the 8th Circuit held that it would
stretch the 1918 act far beyond the bounds
of reason to construe it as an absolute
criminal prohibition on conduct such as
timber harvesting, which indirectly results
in the death of migratory birds, the two
association quote. A 9th Circuit decision
goes ever further. API and IPAA say
that court has a record extending 25 years
that consistently holds the act's plain
language prohibits only the actions of
hunters and poachers.
IPAA and API recommend that USFWS evaluate a no-action alternative in
the EIS and clearly explain the legal
basis it is using to justify applying the
incidental take permit to avian fatalities
not caused by human action. For the first
time, the groups state, the service is identifying several industries or activities-
including oil, gas and wastewater disposal
pits; methane or other gas burner pipes;
communication towers; electric transmission and distribution lines; and wind energy facilities-it asserts are subject to a
prohibition on incidental takes.
"These industries and 'activities' all
share a common feature-in none of them
is a person acting directly to bring about
the taking or killing of a protected bird.
Instead, in each of them, the birds themselves are the actors, colliding or otherwise
interacting with industrial structures," the
industry associations say.
"A broad interpretation of the MBTA
that would impose criminal liability on
the owner of any structure or any activity
that results in a bird death, however
passive and far removed from an activity

directed at birds, would be contrary to
the rule of lenity and should not be
adopted by the service," API and IPAA
urge.

Sue-And-Settle
According to Sgamma, the Western
Energy Alliance analyzed petitions and
lawsuits filed since the Department of
the Interior reached a settlement agreement
in 2011 for a combined 878 species with
WildEarth Guardians (WEG) and the
Center for Biological Diversity (CBD).
DOI's justification for entering the
closed-door agreements, which excluded
the public, elected officials, states, localities
and other stakeholders, was to limit future
listing petitions and litigation, Sgamma
testified to the Senate subcommittee.
"But DOI essentially handed over policymaking to two special interest groups
and committed its resources to the priorities
of these groups," she said. "Ceding that
much power to one special interest has
placed a burden on the federal government,
states, productive industries, and private
landowners that is alarming."
The Alliance conducted a legal analysis
to determine whether DOI achieved its
goal of reducing filing petitions and litigation, and determined the settlements
were a resounding failure, Sgamma continued. She details the analysis, which
shows that since 2011:
* There have been 53 petitions filed
requesting a listing or uplisting (from
threatened to endangered) on 129 species.
WEG and CBD are responsible for 38
(72 percent) of the petitions covering
113 (88 percent) of the species.
* Requests for listings have climbed
to an average of 31 species a year, up
from 20 prior to 2007.
* CBD delivered a 53-species petition
to USFWS less than a year after the settlements were approved, leading Assistant
SEPTEMBER 2015 167

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American Oil and Gas Reporter - September 2015

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