American Oil and Gas Reporter - March 2020 - 20

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defer part of the Mesa County sale,
while the other three counties were
affected by a lawsuit involving greater
sage grouse habitat, media reports
describe. A 2019 injunction in a federal
case in Idaho about BLM sage grouse
management plans forced the agency to
defer offering the acreage, which allows
it to offer it in a later sale (AOGR,
November 2019, pg. 80).
BLM announced plans for the March
sale early in October. Media reports
note anti-development groups sued a
week later. The injunction in the greater
sage grouse habitat lawsuit was issued
Oct. 16.
The Grand Junction lawsuit was filed
in the U.S. District Court for the District
of Colorado by the Center for
Biological Diversity, Wilderness
Society and Wilderness Workshop. It
alleges the RMP violated the National
Environmental Policy Act by failing to
properly analyze the impacts of
greenhouse gas emissions or consider
management alternatives that would
limit oil and gas leasing, court
documents state.
The lawsuit is the second the groups
have filed against BLM. The 2018
action challenged leasing on more than
45,000 acres in western Colorado. The
later lawsuit seeks to block agency
plans to lease as much as 935,000 acres
for oil and gas leasing. The Western
Environmental Law Center, which filed
the lawsuit on behalf of the groups, says
in addition to failing to consider
leasing's environmental impacts, BLM
is ignoring likely public health risks
from oil and gas activity.
According to media reports, no
injunctions have been issued in the
Grand Junction lawsuit, and BLM itself
opted to defer any offer of the Mesa
County acreage. Several state oil and
gas associations, including the West
Slope Colorado Oil & Gas Association,
have moved to intervene in the case. ❒

USFWS Seeks Change
In Migratory Bird Act To
Allow Incidental Taking
WASHINGTON-The U.S. Fish &
Wildlife Service says it wants to
redefine the scope of the Migratory Bird
Treaty Act to clarify that the treaty only
covers intentional harm to birds. Under
the proposed revisions, conduct that
20 THE AMERICAN OIL & GAS REPORTER

leads to unintentional or incidental
injury or death of migratory birds would
not be prohibited. The agency says this
change will provide regulatory certainty
to the public, industries, states, tribes
and other stakeholders.
The proposed action clarifies the
2017 Department of the Interior
Solicitor's Office Opinion M-37050,
which, USFWS says, analyzed the
MTBA's scope. It determined the act
only applies to the intentional take of
migratory birds, and that the take of
birds resulting from an activity is not
prohibited when the underlying purpose
of that activity is not to take birds. The
agency adds the Endangered Species
Act and the Bald and Golden Eagle
Protection Act, as well as state laws and
regulations, are unaffected by the
proposed change.
"With five federal circuit courts of
appeal divided on this question, it is
important to bring regulatory certainty
to the public by clarifying that the
criminal scope of the MTBA only
reaches to conduct intentionally injuring
birds," says Assistant Secretary for Fish
and Wildlife and Park Rob Wallace.
"That said, we will continue to work
collaboratively with states, cities,
conservation groups, industries, trade
associations and citizens to ensure that
best practices are followed to minimize
unintended harm to birds and their
habitats."
USFWS says it has determined an
environmental impact statement is the
most efficient and comprehensive
approach for considering the potential
impacts of its actions on the
environment. It is seeking public
comment as part of the rule-making
process. After the notice of intent was
published in the Federal Register on
Feb. 3, the agency says, it began a 45day scoping process, including
accepting public comments through
March 19.
Comments can be submitted through
the Federal eRulemaking Portal at
www.regulations.gov, or by U.S. mail at
Public Comments Processing, Attn:
FWS-HQ-MB-2018-0090; U.S. Fish
and Wildlife Service; MS: JAO/1N;
5272 Leesburg Pike; Falls Church, VA
22041-3803.
Erik G. Milito, president of the
National Ocean Industries Association,
says the proposal unifies MBTA's intent
with the repeated findings of U.S.

courts. "NIMBY-inspired litigation has
been used in the past to hold reasonable
and responsible activities, including
wind energy development, hostage," he
says, adding the revisions will continue
to balance economic growth with
environmental considerations. ❒

Federal Judge Vacates
Oil, Gas Lease Sales In
Five Western States
BOISE, ID.-The Bureau of Land
Management failed to follow federal
policies when it issued a new instruction
manual for leasing oil and gas rights on
federal acreage, the U.S. District Court,
District of Idaho, has ruled. The
decision invalidates five lease sales
involving sage grouse habitat in
Wyoming, Utah and Nevada held
between June and September 2019.
The ruling in Western Watersheds
Project and Center for Biological
Diversity v. Ryan Zinke, David
Bernhardt and U.S. Bureau of Land
Management targets the bureau's
instruction memorandum IM 2018-034.
Judge Ronald Bush ruled in favor of
the plaintiffs, saying the document
unlawfully restricted public
participation in BLM's leasing
decisions. His decision vacates the
lease sales held under IM 2018-034
and reinstates the rules put in place in
the Obama administration (IM 2010117) until the bureau changes the
procedures through a notice-andcomment rule making.
The plaintiffs challenged what they
contended were unlawful actions by the
Trump administration to promote and
expedite oil and gas leasing on public
lands in a way that "will adversely
impact essential habitats and
populations across the range of the
greater sage-grouse ... and violate
bedrock environmental laws," court
documents state, including the Federal
Land Policy and Management Act,
National Environmental Policy Act,
Administrative Procedure Act, and the
2015 sage grouse plan amendments to
BLM's resource management plans.
BLM claimed the 2018 IM was
intended to serve as a guide for agency
policymakers, not as a final agency
action, and thus was ineligible for court
review. Bush rejected that defense,
stating IM 2018-034's language was
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