President’s Column – October 2002

Title: News Release from Wildcatter Weekly
Author: John Robinson
Publication: The Outcrop, October 2002, p. 3

This is an interesting news release from the August 16, 2002 Wildcatter Weekly. It is printed with the permission of IPAMS.

The Southern Utah Wilderness Alliance (SUWA) has been ordered to pay litigation costs to Intrepid Oil & Gas, LLC. SUWA filed a protest with the Bureau of Land Management (BLM) to prevent Intrepid from conducting a seismic exploration project in an area north of Canyonlands National Park. The project had been approved by the BLM following a one-year permitting process that involved a comprehensive Environmental Assessment (EA) as well as a public comment opportunity, in which SUWA participated. In obtaining approval for the project, Intrepid voluntarily agreed to extraordinary mitigation efforts to protect the surface resources in the area.

When the BLM denied the protest and said the exploration project could go forward, SUWA filed a lawsuit in U.S. District Court seeking an injunction to halt the project. SUWA’s complaint alleged the project EA had not considered impacts to the “threatened” Great Plains rat snake and five species of bat. In fact, the species were not listed as endangered, threatened, proposed or candidate T&E species, but were classified as “sensitive species”. According to court records, the Great Plains rat snake had not been sighted in the project area since 1931, although one of the snakes had been sighted 30 miles away from the project area in a completely different type of habitat. Neither had any of the five bat species been sighted in the area. Nevertheless, to support its claims that the species would be harmed, SUWA provided the affidavits of two “experts” who maintained the project could harm the species: Dr. Jack Sites, Jr., and graduate student Richard Sherwin. In depositions, however, the “experts” admitted they had never been to the area of the proposed project, nor did they know whether the two species had ever been present in the area. The depositions further revealed that SUWA had simply sought volunteers who would be willing to sign affidavits saying these species “could” exist in the area, specifically to assist the group in challenging the proposed project.

The case was dismissed “with prejudice,” meaning SUWA cannot raise the same issues before the court again. The project was allowed to proceed, and the Court awarded specified costs to Intrepid. SUWA then challenged the award of costs, asserting that Intrepid was an intervenor, not a “prevailing” party as required by the court’s rule allowing cost recovery. SUWA also claimed that awarding costs to Intrepid would “chill” public interest litigation by environmental organizations. The court found that Intrepid had indeed prevailed and, further, that Intrepid had made a substantial contribution to the defense of the BLM through the company’s participation as an intervenor. Based on these findings, the court said Intrepid was entitled to certain litigation costs and that denying the cost award would penalize the company even though it had won the case. The court also rejected SUWA’s argument that a cost award would discourage future public interest litigation. The court noted that even though SUWA is a nonprofit organization, it is certainly not indigent. According to court papers, SUWA reported $2,106,709 in total revenues in 2000.