Wyoming News

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Is A Public-Private Wyoming Range Agreement the Future of Conservation Deals?

By Shauna Stephenson, 2-08-11

Photo by Flickr user Wyoming: Upper Green River Valley.

An agreement struck between private citizens and a Texas-based oil and gas company looking to drill on public land in Wyoming may become a model for other environmentally sensitive areas facing increased drilling across the Rocky Mountain West.

While many pieces remain undecided in the proposal to develop 136 wells in the Wyoming Range west of Pinedale, Wyoming, it appears similar agreements reached between private parties—and outside of the public process for approving oil and gas drilling— are becoming more common.

These deals, often struck between conservation groups and industry, do not replace the federally mandated public review process, which requires companies interested in drilling on public land to submit a plan to federal agencies like the U.S. Forest Service or the Bureau of Land Management. That plan is then evaluated and tweaked through a series of studies, reports and public comments to fit the land and wildlife, as well as users such as wildlife advocates, hunters, ranchers or recreationists.

Some see it as sleeping with the enemy, but some environmental organizations are finding ways for more people to get what they want by negotiating with companies directly, making outside deals that run parallel to the stipulations set by federal agencies.

“I think it’s time that we all start to reevaluate how these public agencies go about administering these resources,” says Jock Jacober, president of the Thompson Divide Coalition, a conservation group trying to protect lands near Carbondale, Colorado, from energy development. “The question is, is there another paradigm? Is there an alternative (to the current process)?”

While the era of compromise seems to be relatively new, it’s leaving some to wonder how private interests will shape public land in the future. To be clear, these agreements do not replace the public process or federal regulation, but rather act in tandem. Companies will still be required to have approval from a federal agency to drill on public land, and they will still be liable for the rules set forth in their approved plan. However, if they sign an agreement with private citizens, they will be contractually bound by that as well.

Some say finding a compromise between stakeholders is a good thing, as it gives locals more control over what happens in their own backyard, noting that the culture of private negotiations has long been part of the process between public agencies and energy companies. Others say what happens on public land should remain in the public process—if anyone can negotiate their own deal on something that belongs to the public, what’s the point of it being public?

In Wyoming, the agreement in question (reached, with the help of the state, between the Wyoming Sportsmen for Fish and Wildlife, the Wyoming Outfitters and Guides Association, and Plains Exploration and Production Company) was presented in December almost simultaneously with the release of the long-awaited draft environmental impact statement, a public “first draft” of the tweaks the Forest Service would be making to the proposal to drill.

While the official document has yet to be released, a term sheet signed by all three parties called for the retirement of 28,000 acres of leases at no cost, and the commitment of $6 million over the life of the project to monitor changes in water and air quality, wildlife mitigation and community benefits. Drill rigs would be restricted to about 4,000 acres and rules to help minimize disturbance to wildlife, such as truck traffic, would be put in place for areas that do see development. These terms, however, only go into effect if the Forest Service allows Plains Exploration and Production Company (PXP) to go forward with its development plans.

The agreement is essentially a hybrid of sorts—a contract whose terms are based on the outcome of the public process, says Ryan Lance, deputy chief of staff to the former Governor, Dave Freudenthal, whose office was involved in the terms that were outlined. He says the agreement was then submitted to the Forest Service as a comment so it could justifiably be used in the Record of Decision (the final decision and rules for the public process, outlining if and how the company can drill) should the Forest Service choose to adopt some of the terms. That could potentially provide the range another layer of protection should the contract or the stipulations set by the Forest Service not be met.

“If the contract mimics the (Record of Decision) language, then (there are) two mechanisms for enforcement,” Lance says.

Despite some of the confusion over its submission as a comment, the contract is legally binding. If the triggers to the agreement are met, meaning the Forest Service allows them to develop and PXP does not fulfill their end of the bargain, the outfitters and sportsmen can sue them for breaking their contract. 

“The private agreement is strictly between parties,” Lance says. “It has no bearing on the public process.”

Since its release, there has been mixed reaction to what some have deemed a step outside the bounds of public process.

“Frankly it was a private agreement signed between three different private parties and these are public lands and public resources,” says Steff Kessler, Wyoming program manager for The Wilderness Society. “I consider myself a public interest person. I truly believe that best public policy is derived from open and broad process where a lot of ideas come into the mix and get sorted and get the best ideas all together.”

But others think the public process isn’t all it’s cracked up to be, as evidenced by similar issues in the area. Near Pinedale, the public process has also produced places like the Jonah Field, which now has wells being drilled every five acres, and the Pinedale Anticline, which has watched it mule deer population plummet despite having “wildlife-friendly” stipulations in it’s proposal – proof to some that it’s time for a change in the way the West does business with big energy.

PRIVATE OVER PUBLIC?

For the Wyoming Range, some of the confusion over the private agreement came from its submission as a comment for the draft environmental impact statement (DEIS). The Forest Service has said they intend to treat it like all other comments.

“We will accept this information along with all other comments during the comment period for the draft EIS,” says Kurt Davis, district ranger for the Big Piney District. “All information received during this public comment period will be considered in the final EIS. Each comment will have the same ranking, same authority and the same value.”

Since the Forest Service is in charge of the permits, the terms in the agreement are triggered by the final decision on if and how the company may proceed with its plan to drill. However, if the restrictions set out by the Forest Service are less stringent than those included in the agreement, PXP is still required to live up to the terms it signed off on. So essentially, the terms outlined in the agreement are the baseline for what will be required of PXP.

“The beauty of this is we have committed them to an agreement that they are bound by no matter what,” says Gary Amerine, vice president of the Wyoming Outfitters and Guides Association and one of the signatories on the agreement. “I hope this is a framework for other developments that are coming down the road.”

Even though the agreement protects portions of the range, it has suffered some backlash from groups working to do the same thing.

“It’s sort of what I expected,” Amerine says. “The more green-leaning environmental groups obviously got their nose out of joint.”

He says invitations were extended to all parties when negotiations began.

“I go back to two and a half years ago when the offer was on the table and no one seemed to want to do it except me,” he says.

Still others say the right way of doing things would have been to stay within the public realm.

“The agreement is getting a lot of press,” says Dan Smitherman, member of Citizens for the Wyoming Range. “It’s deserved in one sense and in one sense it’s not. The reality is that agreement is just one additional comment, no different than a letter you write.”

But negotiating behind closed doors is nothing new for the oil and gas leasing process, says Jacober.

“The contention there in Wyoming with regard to the way that Gary and others got together and made deals with gas companies is it seems to have left the public out,” he says. “(But) that’s the pattern we live with now. Gary and those guys didn’t establish that pattern. The agencies did.”

Smitherman says the public feels betrayed by the agreement.

“It’s hard to understand why this group decided to take on itself to represent the public interest,” he says. “I’ve heard no positive comment about the process.”

That said, he admits the agreement isn’t all bad.

“There are some good things in that agreement. Retirement of the leases is great, other minor stuff that’s good, and the fact that PXP negotiated is good. (But) it’s just a starting spot. It’s not the end.”

PART OF A TREND?

Groups in other areas facing more oil and gas drilling are currently looking at this kind of model as an option to be used in conjunction with the public process.

In Utah, a similar agreement evolved for the West Tavaputs Plateau Project in Nine Mile Canyon (near Price) where a compromise was reached between the company, the Bill Barrett Corporation and local conservation groups, causing the corporation to submit a letter voluntarily reducing the number of wells. Initially, the company had planned on drilling 807 wells from 538 pads and voluntarily decreased that to 626 wells from 120 pads. In that case, the agreement was reached after the comment period had closed.

In Colorado, the Thompson Divide Coalition is looking into in developing an agreement similar to that used in the Wyoming Range. Located near Carbondale, the area is a mix of high-altitude conifer and aspen forest covering about 221,500 acres of federal land. Currently, oil and gas companies hold 81 leases covering about 105,000 acres, half of which are in proposed roadless areas. Groups are working to preserve the area from drilling and permanently withdraw the land from future leasing.

“Compromises are inevitable, unfortunately, until we (can plan land use better),” Jacober says. “You’d think that an agency of the U.S. government would have the ability to plan on a federal level all of North American. We can certainly do it militaristically. Why can’t we do it energy wise? But there isn’t that mandate.”

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