CHAPTER 5 OIL AND GAS OPERATIONS IN THE AFTERMATH OF RARE II AND THE WILDERNESS AREA REVIEW
| Jurisdiction | United States |
(Nov 1980)
OIL AND GAS OPERATIONS IN THE AFTERMATH OF RARE II AND THE WILDERNESS AREA REVIEW
Arco Oil & Gas Company
Denver, Colorado
Much has already been said, written and otherwise espoused about the U.S. Forest Service (USFS) Roadless Area Review and Evaluation II (RARE II) and some dissertations have already been given on the Bureau of Land Management's (BLM) Wilderness Review process. Therefore, the purpose of this paper will not be to extensively review or comment on either of the processes, but rather to provide an update of the status of both processes and a thorough discussion of the practical effects of both processes on oil and gas operations in the Overthrust.
While the title to the paper would imply we are in a post-administrative phase of both of these inventory and identification processes, nothing could be farther from fact. Both the USFS and BLM have apparently adopted policies which would preclude normal oil and gas operations in the Overthrust until such time as conclusive determinations have been made that public lands under either of their administrations will not or should not be included within the National Wilderness Preservation System (Wilderness).
Because of the apparent course of action being adopted by the governmental agencies, the oil and gas industry must adopt a posture not of defeat or defensiveness but a posture of positiveness and conciliation. There may be a tendency, if not an absolute drive, on the part of industry or any one of its representatives to adopt a litiguous posture with regard to its right to conduct oil and gas operations on public lands. Such an approach may be absolutely legally correct but will inevitably result in significant delays and a further polarization of the various factions involved in the processes, a situation which the industry has successfully worked to avoid in the past.
This paper will attempt, through an understanding of the current situation, to present positive courses of action as an alternative to litigation, which, even if successful, will undoubtedly result in significant delays, further polarization and added uncertainty.
U.S. FOREST SERVICE RARE II PROGRAM
The RARE II program was ostensibly completed on January 15, 1979, with Secretary of Agriculture Bergland's recommendation to the President of the United States of America that of the 63 million acres of USFS lands inventoried, 15.5 million acres be recommended to Congress for Wilderness designation, 10.8 million acres be designated as further planning areas pending determination of their Wilderness suitability
[Page 5-2]
and 36.7 million acres be classified as non-wilderness, subject only to the normal USFS land management planning process. Absent a major disagreement with the Secretary's recommendation on the part of the President, the Congress or the courts, the USFS should have been able to adopt a clear course of action which would permit use of public lands subject to the USFS's administration in a manner consistent with multiple use and sustained yield principles.
Before addressing what the USFS has done subsequent to its recommendation to the President, there must be a consideration of the President's reaction, the court's reaction and the Congress' reaction to the Secretary of Agriculture's recommendation. While the President's recommendation of 15.5 million acre addition to Wilderness, 10.8 million acres of further planning areas and 36.7 million acres of non-wilderness are obviously not the same as those recommended by the USFS, there is no indication that the President took significant exception to the results of the RARE II process or that the USFS should not manage those lands identified as non-wilderness in accordance with multiple use principles.
With the exception of a preliminary ruling by the courts in California, there appears to have been no major drive to have the results of the RARE II process set aside judicially — another signal to the USFS to move forward in a normal fashion in accordance with multiple use principles. Likewise, limited Congressional action to date, especially the absence of any omnibus legislation to negate the effect of the results of the RARE II process, should have also been a signal to the USFS to proceed in a normal fashion.
The experience of the oil and gas industry since the completion of the RARE II process would seem to indicate a general reluctance, if not an absolute refusal, on the part of the USFS to administer the public lands under its control consistent with multiple use and sustained yield principles. There are approximately 2300 pending oil and gas lease applications on USFS lands in the Overthrust recommended for non-wilderness treatment which have not been cleared for issuance of leases. It has been recently reported that no such lease application will be cleared for issuance of oil and gas leases until either a new environmental assessment has been completed for each forest or a complete new land management plan has been completed for each forest.
A subjective assessment of the apparent situation would seem to indicate a fear on the part of officers of the current administration to take positive action until such time as forced to by court action or until such time as Congress has completed all of its Wilderness deliberations.
Perhaps the most significant action to be taken with regard to the RARE II process will be that action taken by the
[Page 5-3]
Congress. While the areas of the Overthrust appear to have faired very well, with only a limited number of Overthrust areas being recommended for Wilderness designation, a great deal of uncertainty exists with regard to those lands which have been recommended as further planning areas and non-wilderness areas. It now appears that the only certain way of reducing or eliminating the uncertainty with regard to non-wilderness lands will be statutory "release language."
However, before addressing the concept of "release language," one must address how the various RARE II lands are being handled in Congress. Obviously the states most critical to Overthrust operations are Wyoming and Utah; however, one must address the actions being taken by Idaho, Nevada, Montana, Utah and Wyoming Congressional delegations. All of the states enumerated above are ones which already have a significant amount of Wilderness lands and, perhaps with the exception of Nevada, are states which depend to a significant degree on public lands industries for a major contribution to their states' economies. Therefore, as one can predict, there has been no major clamour for the creation of additional Wilderness within these states' boundaries.
Idaho is the first of these states to have had significant Wilderness legislation as a result of the RARE II process. The result of the Central Idaho Wilderness Bill has been the addition of 2.239 million acres of Wilderness lands within Idaho. It presently appears that those portions of the Overthrust within Idaho believed to be potentially significant for oil and gas operations have, for the present, been spared significant additional Wilderness encroachment; however, this is not the case with potentially major mineral belts in Idaho. It must be recognized that the Idaho Congressional delegation did as many others have done or will do by attempting to effect the necessary boundary adjustments in Wilderness areas to permit the continuation of existing or planned commercial operations. While such boundary adjustments may have provided a solution to such access problems, there has been no mitigation against the effects of Clean Air Act problems associated with proximity of commercial operations to Wilderness areas. Idaho is one of those states where "release language" was sought but not received; therefore, there continues to be significant uncertainty with respect to the ability to conduct oil and gas operations on lands recommended for further planning and on those non-wilderness lands near further planning areas or otherwise sensitive areas.
Montana is another state where it is anticipated that significant additions to Wilderness will be sought. Even though Montana may be characterized as an extractive resource industry state, there are those who would seek to limit such future activity. We in industry are presently hopeful that the Montana Congressional delegation will, as did the Idaho delegation, be willing to compromise on Wilderness boundaries to
[Page 5-4]
facilitate access to areas of significant resource potential and will avoid Wilderness designation for those lands with known or suspected significant resource potential. It presently appears there will be no omnibus Wilderness legislation from the Montana delegation which would address the RARE II recommendations for Montana; therefore, until completion of all Montana Wilderness legislation or a clear indication that no lands other than those recommended for Wilderness designation are going to be considered, a high degree of uncertainty will continue to exist with regard to lands recommended as non-wilderness lands.
One is probably safe in anticipating that the industry will fare quite well with regard to additional Wilderness designations in the Overthrust in Wyoming and Utah and can anticipate a reasonably prompt return to normalcy if the Wyoming and Utah Congressional delegations have their way. There was no legislation introduced in the 96th Congress, as a result of the RARE II process recommendations, which would have provided additions to Wilderness lands in the Overthrust area of either Wyoming or Utah. It is presently hoped that when such legislation is introduced it will be accompanied by a strong, effective "release language," which will remove the pallor of uncertainty surrounding USFS lands in the Overthrust of Wyoming and Utah.
It is going to be difficult to address the...
To continue reading
Request your trial