Governor: Industry/Forest Service MOU ‘Extremely Suspect’
by Governor Freudenthal - media release
April 22, 2008
(Cheyenne) A formal agreement between the U.S. Forest Service and a company seeking to acquire oil and gas leases in the Wyoming Range is “extremely suspect,” Gov. Dave Freudenthal said this week, as it allows the company an inappropriate amount of influence.
The Governor said that as a result of the improper relationship between the agency and Stanley Energy, “I now have serious doubts as to whether the state of Wyoming can continue to participate in what appears to be a compromised leasing SEIS.”
Freudenthal expressed concerns about the integrity of the leasing Supplemental Environmental Impact Statement (SEIS) for 44,720 acres in the Big Piney Ranger District on the Bridger-Teton National Forest in a letter to Regional Forester Harv Forsgren.
Stanley Energy is one of several companies seeking to secure leases in a sensitive area of the Wyoming Range that had been suspended by the Interior Board of Land Appeals. Earlier this year, Freudenthal testified before the U.S. Senate Subcommittee on Public Lands and Forests in favor of federal legislation to protect the Wyoming Range, and strongly suggested that development of the range is too pivotal an issue to address in a haphazard fashion. The company has suggested that it might drill 200 wells from eight, 50-acre well pads in the area.
“The need to slow down and exercise caution is absolutely critical now that a cloud of controversy hangs heavily over the leasing SEIS,” Freudenthal wrote. “I urge you to halt this SEIS and either address the leasing question in a forest plan amendment, or restart the leasing SEIS as a public process underwritten by the Forest Service.”
The Governor’s letter follows:
April 21, 2008
Mr. Harv Forsgren
U.S. Forest Service, Intermountain Region
324 25th Street
Ogden, UT 84401
Dear Mr. Forsgren:
As you may know, representatives from my office were invited to participate in a meeting and two conference calls regarding the leasing Supplemental Environmental Impact Statement (SEIS) for the 44,720 acres in the Big Piney Ranger District on the Bridger-Teton National Forest. They joined these conversations despite the odd decision by the Bridger-Teton National Forest to allow an interested stakeholder relative to a portion of these leases, Stanley Energy, and its attorneys to host the first meeting at Holland & Hart’s Cheyenne Office and direct much of the conversation during the subsequent phone calls. After reviewing the apparent Memorandum of Understanding (MOU) between Stanley and the Forest Service, the peculiar has now become extremely suspect, and I now have serious doubts as to whether the state of Wyoming can continue to participate in what appears to be a compromised
In our experience, it is not unusual for leaseholders to pay for project-level analysis. Regularly, the state plays an active role in NEPA planning documents that are funded by oil and gas companies. In those instances, the question is not whether leasing should be authorized, but instead how development should proceed. While Stanley is the recognized “high bidder” for some of the leases in question, leasing has yet to be authorized – thus the need for an SEIS. Given the fact that the Interior Board of Land Appeals expressly stated that the Forest Service had full authority, through the SEIS, to cancel any part or all of the leases in question, Stanley should not be allowed to guide and fund the NEPA process to determine the fate of this very sensitive and closely watched block of leases in the Wyoming Range.
Given the Proposed Action to lift the current suspension on the December 2005 and April 2006 leases and to issue those that were sold but not issued from the June and August 2006 sales, it could be suggested that Stanley has purchased a favorable outcome. This appearance of impropriety is magnified by the fact that the SEIS is governed by an MOU between Stanley and the Forest Service that potentially gives Stanley questionable consultative access.
For example, the MOU states that the “analysis will be prepared by a Prime Consultant, hired from a list of U.S. Forest Service approved contractors and paid for by Stanley.” (FS 08-MU-11040300-005, Sec. C, Item 1) It later commits the Forest Service to “consider the views of Stanley in choosing the Prime Consultant.” (Sec. D, Item 2) The MOU also declares that “the U.S. Forest Service and the Prime Consultant will make every effort to meet a time schedule mutually agreed upon in writing by Stanley and the U.S. Forest Service.” (Sec. C, Item 2) While the final selection is “subject to review and written acceptance by the U.S. Forest Service,” Stanley is given authority to “select a Prime Consultant from the U.S. Forest Service list of qualified contractors for the completion of the analysis on the Project.” (Sec. E, Item 2) In what seems a flagrant violation of the open and collaborative spirit of NEPA, the MOU states that “oral and written communication among ID team members are protected from disclosure to preserve the integrity of the deliberative process.” (Sec. F, Item 4) In my mind, the integrity of a deliberative process is best safeguarded
by transparency rather than secrecy.
Going further, the MOU requires the Forest Service to meet with Stanley to discuss the project description to determine what mitigation measures might be required, even though leasing traditionally does not require mitigation – unless the MOU presupposes a different type of “project.” (Sec. D, Item 17) Also, the MOU forces the Forest Service to consider any “Stanley-proposed alternative,” which is unusual given that Stanley is but one company in a block of other “high bidders.” (Sec. D, Item 18) The MOU then directs the Forest Service to “be responsible for the public review of the analysis, public hearings, analysis of public comments, distribution of the documents, within established time frames, with input as required from Stanley. (Sec. D, Item 19, emphasis added) This would offer Stanley the chance to review public comments and even provide input on those public comments, especially since the next provision gives Stanley the authority to determine modifications of the text “as a result of public comments with input from Stanley.” Finally, Item 21 of Section D of the MOU would obligate the Forest Service to “accept and utilize information” submitted by Stanley. In other words, the Forest Service has not only provided undue access through the MOU – it has opened the door for Stanley to dictate the details and the outcome.
I was recently informed that the Forest Service, after hearing strong concerns from the BLM and others, has decided to change the current arrangement to prevent Stanley and its attorneys from participating in the bi-monthly project meetings and phone calls. This gesture implicitly acknowledges that Stanley’s participation to date has been suspect. I do not think that this will be enough to revive a tainted process, however, especially as long as Stanley is paying for the analysis, and the underlying MOU remains in place. Stanley and its attorneys may have gone belowdecks, but this still looks like a ship built with their timber.
My opposition to energy development on the 44,720 Bridger-Teton National Forest acres is well known, but my objections to this leasing SEIS are rooted in a concern for good governance. While there can be reasonable disagreement on the ultimate question of energy development in the Wyoming Range, I think the decisional process has to be as fair and open as possible. It is little wonder that I am not the first to express grave concerns about Stanley’s involvement. Even if the Bridger-Teton National Forest would like this leasing SEIS to continue, I do not think it is wise or practical to do so. I urge you to halt this SEIS and either address the leasing question in a forest plan amendment, or restart the leasing SEIS as a public process underwritten by the Forest Service.
As I emphasized during my February testimony before the U.S. Senate Subcommittee on Public Lands and Forests, development of the Wyoming Range is too pivotal an issue – from the standpoint of recreation, air quality and wildlife, including such sensitive and threatened species as the cutthroat trout and Canada lynx – to address in a hurried fashion. Stanley Energy has suggested that it might drill 200 wells from eight, 50-acre well pads in the area, even while the Bridger-Teton National Forest is in the process of a forest plan revision and will be analyzing whether new leasing is appropriate on the forest in light of the extensive development occurring on nearby BLM lands. Surely the Forest Service should approach the leasing decision in a plan revision and wait to see the outcome of the Wyoming Range legislation. As it currently stands, scoping comments on the leasing SEIS are due later this week, even though the Forest Service has not released a Reasonably Foreseeable Development scenario (RFD). The need to slow down and exercise caution is absolutely critical now that a cloud of controversy hangs heavily over the leasing SEIS.