Date: Jun 08, 2005
By CLAIR JOHNSON
The Billings Gazette
A federal judge this week invalidated the expansion of a coalbed
methane field in southeastern Montana, saying the Bureau of Land
Management's analysis of the project relies on a voided statewide
environmental study.
U.S. Magistrate Richard Anderson also ruled that the BLM failed to
consult as required with the Northern Cheyenne Indian tribe on cultural
resources before approving the project.
Anderson ordered the halt of all operations, production and
development at the Badger Hills project by Fidelity Exploration & Production
Co. while further environmental study and consultation with the tribe are
completed.
Anderson's rulings issued Monday came in suits filed by the Northern
Plains Resource Council and the Northern Cheyenne Tribe.
"BLM's been building a house of cards,'' said Tongue River rancher
Mark Fix, chair of NPRC's coalbed methane task force. "We've got a chance to
develop coalbed methane responsibly in our state, and that means getting it
right from the beginning. This ruling gives a chance to do just that. It
kind of sends the message they (the BLM) need to do the EA (environmental
assessment) a little better.''
"We're very pleased with the ruling,'' said tribal attorney John Arum.
"We had major concerns about BLM's failure to consult with the tribe in this
area. The concerns have been vindicated by this decision.''
Fidelity officials said they received the court orders Tuesday
afternoon and were reviewing the information. Fidelity, a subsidiary of MDU
Resources Inc., is currently the state's only producer of coalbed methane
and has between 450 and 500 producing wells, including the Badger Hills
project, in its CX Field near Decker.
Greg Albright, BLM spokesman, said, "Basically, the spigot gets shut
off and the gas that was flowing will no longer flow until such time further
review is done.''
The BLM expects its court-ordered study on phased development for the
statewide environmental study to take from 18 months to two years to
complete. Albright said he thought the Badger Hills issues, which are tied
to the statewide study, will be addressed within that time.
On the consultation issue, Albright said, "We do our honest and level
best to do the consultation that we're required to do. But at times it seems
to be kind of a moving target, and sometimes it appears to be redefined as
we go. It's certainly nothing we take lightly.''
NPRC and the tribe sued the BLM in late 2003 and early last year after
the agency approved Fidelity's 178-well Badger Hills expansion of its CX
Field.
Before suing, both the NPRC and the tribe filed administrative appeals
of the Badger Hills analysis. BLM State Director Martin Ott directed the
agency to rewrite the review and ordered Fidelity to stop development. The
agency issued a second decision approving the project, and Fidelity
completed the expansion in spring 2004.
The Badger Hills project was the first approved by the BLM under its
statewide environmental study on coalbed methane development. The BLM's
environmental assessment of the Badger Hills expansion was linked to the
statewide study.
In a separate lawsuit, Anderson ruled in February that the statewide
study, conducted jointly by the BLM and the state of Montana, was inadequate
because BLM failed to consider development in phases among its alternatives.
In the NPRC's Badger Hills case, the judge said the Badger Hills study
"is so inextricably intertwined'' with the invalidated statewide
environmental study that the Badger Hills analysis cannot independently
satisfy requirements of the National Environmental Policy Act and "must be
overturned.''
The court concluded that until an adequate review has been done, the
"likelihood of irreparable injury to the environment mandates the issuance
of an injunction halting further operations at the project.''
NPRC's suit against the BLM said the BLM failed to complete a more
comprehensive environmental review of the expansion, did not provide an
opportunity for public comment and failed to require an adequate reclamation
bond.
In the tribe's suit, Anderson concluded the BLM failed in its duty "to
make reasonable and good faith efforts'' to consult with the tribe under the
National Historic Preservation Act.
Until the BLM consults with the tribe, it is unknown whether there are
more historic properties in the area in addition the three the agency
identified, the judge said.
"Further operations at the project must be enjoined to prevent
irreparable injury to any as yet unidentified (traditional cultural
properties),'' he said.
"The tribe is very angry about this whole thing,'' said Arum, the
tribes lawyer. The project was developed while it was under administrative
appeal, he said. "Even though we won, the damage has been done.''
The BLM initially approved the project without consulting with the
tribe, Arum said. Then the BLM made a "dishonest attempt'' at consultation
during the second review by not providing the tribe with information that an
agency archaeologist was conducing a study, he said.
"There will be consultation,'' Arum said. If there are cultural areas
affected by the development, the tribe may be able to seek restoration, he
said.