A panel of appellate judges has rejected a suite of claims brought by environmental advocates trying to halt a 220-square-mile gas field planned for a sagebrush expanse housing a famous pronghorn migration path and Wyoming’s largest-known sage grouse winter concentration area. 

The developer, Jonah Energy, now has more clarity about whether to commence drilling 3,500 gas wells in the Normally Pressured Lance field, which was approved via a Bureau of Land Management environmental review seven years ago. 

In its ruling, the 10th Circuit Court of Appeals affirmed what U.S. District Judge Scott Skavdahl decided a year ago: That the National Environmental Policy Act prohibits uninformed decisions, but allows for environmentally harmful decisions. In the 10th Circuit, judges Timothy Tymkovich, Nancy Moritz and Veronica Rossman quoted precedent from a 1989 U.S. Supreme Court ruling in their 31-page decision, writing that NEPA, “merely prohibits uninformed—rather than unwise—agency action.”

The statute, Tymkovich, Moritz and Rossman wrote, “does not even require agencies to promulgate environmentally friendly rules.”

That was the takeaway from a decision that denied all four claims brought by the plaintiffs: Western Watersheds Project, the Center for Biological Diversity and the Upper Green River Alliance. 

“We’re disappointed in the ruling,” Western Watersheds Project Executive Director Erik Molvar said. “The judges ruled that the Bureau of Land Management was justified in not considering in great detail the impacts to the Path of the Pronghorn migration, the herd of pronghorn that summer in Grand Teton National Park. And [they ruled] it was perfectly permissible to consider impacts to pronghorn only at the broadest possible scale, the scale of the Sublette Herd.” 

The dispute over pronghorn — which took center stage during oral arguments — comes at a time when the famous migration treading through the Green and Snake River basins is under siege from a host of pressures, ranging from a deadly winter that shrunk the herd by 75%, to housing developments infringing on the herd’s habitat. 

The state of Wyoming recently offered a section of land in a bottleneck portion of the migration for oil and gas leasing, and it went to the high bidder, Kirkwood Oil and Gas, for $19 an acre — though that sale has been stalled. Meanwhile, the state has dragged its feet at designating the migration path, which could buffer the Path of the Pronghorn from intense drilling in places like the NPL field. 

Arguments shot down

In their appeal, the environmental groups argued that the BLM violated federal environmental law by failing to take a “hard look” at how the gas field would impact the Path of the Pronghorn. 

Tymkovich, Moritz and Rossman weren’t persuaded. 

“The [g]roups misunderstand the regulations,” the appellate justices wrote. “They do not require the Bureau to pay special attention to special resources.” 

The 10th Circuit panel found that analyzing the larger Sublette Herd was adequate. And the harm the gas field, which sits 25 miles south of Pindale, would cause was properly detailed, they wrote.

“The [environmental review] squarely confronted the ‘displacement’ and ‘disrupt[ion]’ of pronghorn ‘migration patterns’ and discussed the ‘[d]egradation’ of ‘migratory routes’ that ‘connect crucial winter range and other pronghorn habitats in the analysis area and the region,’” the opinion reads.

Other arguments brought by the plaintiffs concerned the phasing of development within the 140,000-acre gas field, and alleged NEPA violations for inadequate data gathered about impacts to Grand Teton National Park and sage grouse winter concentration areas. 

The NPL gas field overlaps about half of a complex of sage grouse wintering ground that housed an estimated 2,000 birds in 2015. Highly protected sage grouse “core” habitat has also been kept out of the gas field — and it isn’t being added through an ongoing revision process, leaving birds in the project area vulnerable. 

In denying the plaintiffs’ argument, the appellate judges found the BLM vetted grouse impacts adequately: “The Bureau clearly possessed enough information to anticipate how development would affect the sage grouse and [winter concentration areas] under the selected action.” 

The agency’s proclamation that the gas field would cause sage grouse “various adverse effects” was enough, they wrote. 

Likewise, the panel of judges didn’t buy the argument that the BLM failed to take a hard look at how the project would indirectly impact Grand Teton National Park by harming pronghorn. The judges faulted the plaintiffs for not raising those concerns when the environmental impact statement for the NPL field was being reviewed, and they pointed out the agency did acknowledge indirect interference with “recreation experiences outside the Project Area.”

What’s next? 

Paul Ulrich, vice president of government and regulatory affairs for Jonah Energy, declined an interview for this story. It’s Jonah’s policy to not comment on litigation, he said, and there’s not a “clear picture” for the gas field moving forward. 

Some activity, however, is underway — and road building and even some drilling was taking place while the project was tied up in the courts.   

Records from the BLM’s Pinedale Field Office show that drilling was occurring within the project area as early as 1994. Although the agency’s record of decision for the 3,500-well project was approved in 2018 and litigated shortly thereafter, judges never put a stop to activity in the disputed field. 

From the BLM, WyoFile obtained Jonah Energy’s application-to-drill documents for well pads within the field last winter. At that time, there had been 18 total submitted applications since the decision was published, 11 of which had been approved. Visits to coordinates of several of those approved pads show that, in places, the sagebrush has been scraped and ground leveled to accommodate Jonah Energy’s industrial operations.  

“Where are we now with NPL?” BLM-Wyoming Deputy Director Brad Purdy said. “We are doing site-specific NEPA, which basically is going to be [applications to drill].” 

Through that process, he said, stipulations are imposed that are intended to protect wildlife like sage grouse and big game and other natural resources. 

If natural gas market conditions ripen, Jonah Energy has the latitude to greatly increase the pace. Wells can be constructed at a rate of up to 350 per year, with an average of 10 drill rigs working at any one time, according to the gas field’s final environmental impact statement. At the time of its approval, the gas field was expected to generate an estimated $17.8 billion over 40 years. 

Although they’ve sustained successive losses in court, the project’s opponents haven’t abandoned the fight. 

“There’s always the option to request an en banc review, which would involve additional judges and not just the three we happened to draw,” Western Watersheds Project’s Molvar said. “There are other options for appealing a 10th Circuit ruling, but that’s the one that I would think that would be most likely.” 

Meantime, Upper Green River Alliance Director Linda Baker bemoaned what she sees as more blows to the “internationally significant gem” of the Path of the Pronghorn and the valley’s “iconic sage grouse.” 

“It’s really sad,” Baker said. “And it’s tragic that the federal Bureau of Land Management and the state of Wyoming governor’s office fails to recognize what an incredibly priceless gem we have here.” 

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Judith and Matthew Thompson have watched countless pronghorn hoof it over the frozen New Fork River on the parcel of state land adjacent to their home. 

“The best migration that you could watch comes through that section,” Matthew Thompson said. “It does bottleneck them, and they’ve probably been doing it for 10,000 years right there.” 

Sometimes they’re inspired to record photos and videos of the trails left by massive herds on the go. Last winter, Judith Thompson pulled out her phone to call the Wyoming Game and Fish Department and inquire what to do about a doe pronghorn dying in view of her home. 

On Monday, she pulled out her phone once more, this time to text WyoFile her thoughts about the potential oil and gas development that might be going in one lot over, on the section of Wyoming-owned land right where the pronghorn tend to push through.

“It really sucks,” Judith Thompson wrote. “I’m floored that the state would deem this particular piece of land as to be so vital to the state coffers that they would sacrifice a national treasure for what would be a pittance of their budget.” 

Unbeknownst to the Thompsons until Monday, the rights to drill for oil and gas on the 640-acre parcel abutting their property — part of Wyoming’s school trust land system — had been auctioned off 12 days prior at a Wyoming Office of State Lands and Investments lease sale. The winning bid came in at $19/acre, for a total cost of $13,170 including fees. The company that placed the winning bid has not yet been identified and will remain unnamed until auction documents are published online Thursday, according to Diana Wolvin, an OSLI employee. 

Environmental groups aren’t waiting to learn the lease holder’s name before lambasting the state for greenlighting oil and gas leases in a particularly vulnerable segment of the Path of the Pronghorn, right where migratory herds come off the Pinedale Mesa and cross the New Fork River. 

“This winter was devastating on the Sublette pronghorn herd [and] the last thing these remaining animals need is another obstacle in their way during their seasonal migrations,” Nick Dobric, the Wilderness Society’s Wyoming conservation manager, wrote to WyoFile in an email. “We’ve had good data on this migration for well over a decade, so the state’s continuing inaction to recognize and manage the Path of the Pronghorn is careless.”

Meghan Riley, a public lands and wildlife advocate for the Wyoming Outdoor Council, called Wyoming’s lack of a system to “catch these conflicts” where migration routes haven’t yet been designated “disappointing.”

“Everybody knows these guys got hammered,” Riley said, “and it’s sad to see threats and pressure coming from so many different directions.”  

Four-year delay

Wyoming does have a migration policy that is designed to avert such conflicts, but it hasn’t been used in years.

The celebrated Path of the Pronghorn — AKA, the Sublette Pronghorn Herd migration — includes animals that migrate all the way to Grand Teton National Park and right by Thompson’s backdoor. Although it’s the next migration corridor in the queue to be designated, according to the Wyoming Game and Fish Department, the Path of the Pronghorn has stayed in that on-deck space for more than four years. Proposed protection of the route was paused in 2019, when an alliance of industry groups successfully pressured the state to overhaul how it nominates and designates migration corridors. 

No migration corridor has been designated, or received protections since, though the four-year delay may be nearing its end. 

Coming soon is a Wyoming Game and Fish Department “threat analysis” that will recommend whether the Sublette Pronghorn Herd migration needs to be designated or not, according to deputy director Angi Bruce. 

“I think we’re a few months out,” Bruce said. “Once we review [the threat analysis], we’ll decide where we go. That’ll be taken to our commission at a future commission meeting for their direction and guidance.” 

Wyoming’s migration policy stems from a gubernatorial executive order that lets the governor call the shots. The state’s current chief executive, Gov. Mark Gordon, has downplayed designating the Path of the Pronghorn. At a Pinedale meeting about severe wildlife winterkill in March, he heard calls to make the designation.

“Our pronghorn cannot wait another minute,” Upper Green River Alliance Director Linda Baker told Gordon. “Please do it now.” 

In response, the governor called for a “durable” solution that transcends political swings and changes in federal land management policy. 

“Drawing a line on a map is not going to fix that,” Gordon said. Instead, he said, a “committed” coalition of private landowners, local agencies and the public is needed to make the “migration corridor work.”

Bitter winter, encroaching development

The Sublette Pronghorn Herd has had a rough couple years. 

Based on GPS collar data being amassed to guide a prospective designation, roughly 75% of the formerly 43,000-animal herd died last winter, casualties of an unusual, inverted low-elevation snowpack and a mycoplasma bovis outbreak. Every collared animal that trekked all the way from the Green River Basin to Grand Teton National Park perished, though the Jackson Hole News&Guide has since reported that park biologists have anecdotally observed “at least 25” pronghorn that made the journey.

Meanwhile, the herd’s habitat is being slashed. Encroachments on the migration include private land subdivisions exempted from the state’s policy and a Lower Valley Energy gas pipeline that’s going in. 

Immediately south of the state parcel just leased, Sotheby’s real estate has listed 80 acres for those “looking for serenity, solace and a sense of wide open spaces” to build their “dream home getaway” — price tag $700,000. 

At a July 7 forum on conserving ungulate migration, University of California-Berkeley researcher Arthur Middleton spoke to the confluence of development forces that are coming to places like the Greater Yellowstone Ecosystem. (Disclosure: Middleton is married to WyoFile board member Anna Sale.)

“These parks attract development,” Middleton said. “They attract development that undermines their own selves. Remote work, COVID, TV shows like Yellowstone — seriously — these are driving a wave of development pressure that’s hitting this place, and it’s going to be very severe, I think.”  

Yet other threats to the Sublette Pronghorn Herd’s travel paths loom. 

Jonah Energy’s $17 billion Normally Pressured Lance gas field carves through the southern reaches of the yet-to-be designated Path of the Pronghorn. An attorney for Wyoming contended the gas field and migration corridor didn’t overlap during oral arguments this spring in a case about pronghorn impacts before the 10th Circuit Court of Appeals, but was criticized by one biologist for “doing a deliberate mislead.”

Research found the decades-old Pinedale Anticline field caused Sublette pronghorn to avoid and even abandon altered parts of the landscape after collaborative efforts to create a pronghorn-friendly gas field fell apart. 

Pronghorn protections precluded

Wyoming’s migration policy calls for state agencies to “maintain habitat and limit future disturbance.” Infrastructure like gas pads are to be located  within already disturbed or biologically unsuitable areas if they must occur within a designated corridor, the policy states. 

Even without a designation, Wyoming Game and Fish could have recommended pronghorn protections when it vetted the state’s lease sale, said Bruce, the agency’s deputy director. 

“A lot of people think we need a designation to use our data — if that were the case, we would have spent the last 50 years not using our data,” she said. “The data is the data, and we use it all the time in our operations, our commenting and our reviews.” 

Via a letter and spreadsheet, Game and Fish did ask that some wildlife stipulations be attached to parcel 194, the New Fork River tract leased for $19 an acre. 

Because of the state agency’s recommendation, there’s a stipulation for “big game crucial winter range” instructing developers to avoid human activity from Nov. 15 to April 30. Another stipulation will require that the winning bidder provides a 300-foot buffer from the New Fork River, while another is geared toward preventing the spread of aquatic invasive species. A stipulation that made it through subjects exploration and development activities to Wyoming’s sage grouse core area policy, which is in the process of being revised. 

But a stipulation for pronghorn migration didn’t make the cut for the parcel along the New Fork River. 

Will Schultz, Game and Fish’s habitat protection supervisor, said there are still opportunities via “micro-siting” techniques to diminish the impact of development that’s coming. It’s not like it’s an undisturbed parcel, he pointed out.

“If it can be sited in close proximity to current development, it might not have any more impact than the development that’s already there,” Schultz said. “Hopefully there can be some collocation.” 

Paradise Road, the New Fork River’s Remmick boat ramp and even a battery of Ultra Resources tanks from an earlier era of energy development are among existing developments on the school trust parcel. 

The potential for micro-siting near these disturbances isn’t enough to fully placate Dobric, the Wilderness Society staffer. 

“It’s irresponsible to lease or permit without adequate protections, like the state is proposing now, with what we know about this migration,” he said. “If Wyoming wants to continue to be a leader in big-game migration conservation and ensure our herds are able to rebound then the state needs to take decisive action formally recognizing these migrations.”

Based on publicly available pronghorn location data, the development rights just auctioned off almost assuredly would impact the landscape within the Sublette Pronghorn Herd’s migration corridor, Dobric said.

“There’s additional collar data out there that shows even more routes,” he said. “We’ve heard that the New Fork parcel is even more used than what’s shown already.”  

The Thompsons have seen it firsthand. Matthew Thompson thought back to fall of 2018, when the Roosevelt Fire raged in the Bondurant area to the north, seeming to facilitate an early migration.

“My painter and I watched thousands come through there,” Matthew Thompson said, “and it just blew his mind.”

Thompson on Monday seemed resigned about the fate of the state parcel next door. 

“We aren’t going to be able to stop it,” he said. 

But the Wyoming Outdoor Council’s Riley hasn’t given up the fight. She sent a protest letter to the State Board of Land Commissioners, which meets to review and finalize the sale on Aug. 3. 

“Biologists at the Wyoming Game and Fish Department have drawn on a massive dataset and put tremendous effort into understanding where these animals move on the landscape in preparation for a long-awaited process to officially identify this corridor, with a potential designation in the future,” Riley wrote. “We ask that parcel 194 be withdrawn until that can happen.”

Other neighbors along Paradise Road reached by WyoFile were less convinced that another gas pad or two would further harm the pronghorn migration coming off the Pinedale Mesa and crossing over New Fork River on the way to more southern sweeps of sagebrush. 

“I don’t want it to have an impact, but what’s the most important?” cattle rancher Vera Roberts said. 

Both pronghorn and oil and gas, she added, are “very important.” 

“So I don’t know,” Roberts said. 

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