Tribal Representative Refuses To Budge In Mitigation Process

From a Forest Service map. The red outlines show authorized but suspended oil and gas leases in the Badger-Two Medicine area. An Associated Press report that appeared April 4th incorrectly claimed that the Solonex lease was the only one that had not been relinquished. Sidney Longwell’s lease indicated by the box at upper left.

By Darryl L. Flowers
Published: Tuesday, April 15, 2014 4:30 PM CDT
While the first in a series of “Section 106” meetings held earlier this year was cordial and focused on the Section 106 procedure, the meeting held two weeks ago showed patience is wearing thin, with one side refusing to engage in mitigation, the sole purpose of the Section 106 process.

The meeting was held at the Lewis & Clark Interpretive Center in Great Falls in order to accommodate a larger audience; the meeting held earlier this year was held at the U.S. Forest Service offices in Great Falls. The audience, however, was smaller than the earlier gathering.

William Avey, Chief of the Lewis & Clark and Helena National Forests lead the meeting. John Murray spoke for the Blackfeet. Sidney Longwell, the original owner of the lease traveled from Baton Rouge, Louisiana to attend. He was joined by Steve Lechner, an attorney with Mountain States Legal Foundation. Lechner, fresh off an astounding 8-to-1 landmark decision before the United States Supreme Court is representing Mr. Longwell.

The meeting got underway with Mark Bodily, of the Forest Service, explaining that the purpose of the meeting was to seek “something that will work for Solonex (Mr. Longwell’s company that now owns the mineral lease) and the tribe.” Bodily next explained the “Area of Potential Effect,” or APE, that considers visual, audio and olfactory (smell) in determining an APE, done in consultation with the SHPO (State Historical Preservation Office) and THPO (Tribal Historical Preservation Office). Bodily said the “entire Badger-Two Medicine should be considered an APE.” Bodily continued, saying that in the process “we look at direct, indirect and cumulative effects.”

Sidney Longwell, confined to a wheelchair, asked what had changed over the years, with Bodily replying, “It was based on current information at the time. We completed a recent [third] ethnographic study and determined it eligible for listing under the NHPA (National Historic Preservation Act). It is spiritually, traditionally valuable.”

Lease operator Joe Large, with RPM Geologic, asked Bodily the meaning of “indirect” effect. Bodily attempted to explain indirect effect using a lengthy, wandering analogy involving a rock thrown through a window. At the end of the explanation, Steve Lechner, the attorney for Mr. Longwell asked Bodily to put the analogy in writing.

Lechner asked Bodily, referring to the first Section 106 meeting held in 2003, how large the Traditional Cultural District (TCD) was at that time. Bodily replied he did not know the size at that time, but said that the TCD now covered the entire Solonex lease of 6,247 acres in Glacier and Flathead County. The TCD has now been expanded to approximately 160,000 acres. Lechner commented, “The TCD has increased three times in the past two months.”

Lechner, challenging the Forest Service’s efforts to keep moving the goalposts over the past decades to keep Solonex from drilling a well, said, “The undertaking [drilling a well] has not changed in 30 years.”

Joe Large, speaking to tribal representative John Murray, asked why it was okay to drill within the boundaries of the reservation, but not on land owned by the American people. Large pointed out that there were a dozen drilled wells within five miles of the lease.

Murray, with his voice dropping so low as to be hard to hear at times, said in response, “We are not some failed attempt to be like you. I can’t tell you where that border (border of the reservation and the Badger-Two Medicine) is. Murray went on to talk about how the Bible was “re-written 1,100 times.”

Lechner, following up on Large’s question, asked Murray, “If you can drill here, why can’t you drill here?” Murray replied, “It doesn’t fit our spiritual knowledge system. The Blackfeet knowledge system is still intact.”

Murray then commented on the current struggles of the Blackfeet tribe to govern themselves, a struggle that is often page one fodder for the Great Falls Tribune, “Embezzlement… stealing… politics… the reservation is in a shambles right now.”

Sidney Logwell asked Mark Bodily if the Badger-Two Medicine is a formal TCD, without any congressional action. Bodily explained that, yes, the region is eligible, with the optional next step being an actual listing on the National Historic Registry.

It should be noted that during the determination of the TCD, the “opposing” side, in this case Sidney Longwell, has no say in the process and are not allowed to challenge any findings. Neither is any input sought from the public, and the ethnographic studies on which the public lands are removed from public use are not put out for peer review.

While the area is often portrayed as “pristine,” or “untouched” the area of the lease includes a major highway and railway line, used for both freight and passenger trains. Also crossing the lease are two NorthWestern Energy natural gas pipelines, Qwest Communications communications lines and electrical lines. Multiple roads, easy noticeable in satellite imagery, plainly show evidence of past human activity in the form of seismic testing that was conducted in the 1970s and 80s.

When NorthWestern Energy sought permission to add a second natural gas line in the last decade, the U.S. Forest Service issued a “FONSI,” or Finding Of No Significant Impact. In the fidning, the Forest Service and the SHPO both found no archeological or cultural issues with the pipeline. The FONSI also reaffirmed that, in accordance with the 1895 treaty, the Blackfeet Tribe only retained limits rights to the land, those rights being fishing, hunting and gathering wood for heat or construction. Longwell owns the oil and gas located under those lines.

The FONSI refers to the area as a transportation and communications corridor. The approved well is less than two miles from this corridor.

Longwell, speaking bluntly, asked, “The TCD cannot stop us from drilling. How many meetings will we have? When are we going to start mitigating the problems? Enough policy discussions, it’s time to move forward.”

The Forest Service’s Mark Bodily replied, “We are on the cusp now.”

Bodily then asked John Murray what are some of the potential effects that need to be mitigated. Murray answered, “You know what a bridge looks like. You know what a Forest Service Road looks like.” Lechner shot back, “Those effects have been studied ad nauseam via Environmental Impact Studies (EIS). You can’t start from square one.”

After a discussion about the Forest Service Record of Decision on the original Solonex permit (at that time American Petrofina of Texas was the lease operator) and a nearby Chevron well, Joe Large brought the meeting back to point, “At the last meeting, I discussed mitigation,” referring to Joe’s presentation in the January Section 106 meeting that, using technology not available 32 years ago, the wells could be drilled using a smaller footprint, in a much shorter time, and without the use of a “mud pit.”

Longwell asked the tribe, represented at the meeting by Murray, to “Give a little. Let the tribe give us permission, we will honor their religious beliefs, but we need some consideration.”

Murray answered, “I don’t think the traditional people are willing to give.” Murray then suggested that Longwell take tax credits to abandon the lease, or “drill somewhere else.”

Through lawsuits filed with the federal courts environmentalists have succeeded in putting exploration on hold. With the cooperation of anti-energy legislators, an attempt continues to force the mineral owners off their leases. The government offered lucrative tax incentives… taxpayer money… to leaseholders in hopes they will relinquish their leases, thereby not only depriving the federal and state treasuries of royalty revenue, but making the taxpayers foot the bill. Alternatively, leaseholders could swap for public land in another area and begin the multi-decade fight with federal agencies and environmentalists all over again.

When Joe Large asked about the fluid nature of the boundary between the reservation and the lease, John Murray said “we opposed wells on the reservation. We tried to enlist the help of organizations such as Earth Justice.” Lechner asked if the Blackfeet would oppose drilling outside the TCD, with Murray answering, “You could drill on my land. We think we have ancient rights of endowment.”

After an explanation of the SHPO process, Mark Bodily said the group needed to look at the proposal and consider mitigation. John Murray seemed to end the need for further discussions on mitigation by stating, “No drilling.”

Sidney Longwell came back with, “I want to be able to drill.”

Bodily asked about the possibility of moving the well location. However, Longwell, Lechner and Large ruled that out, saying that if there were any changes in the APD (Approved Permit to Drill), the entire process would have to start over again. “No matter what else we may consider, we will cannot give up our approved APD,” said Large.

As the discussion turned from mitigation to asking what would happen if Solonex abandoned any further attempt at mitigation with the Blackfeet, Forest Service Chief Avey, referring to a case cited in the previous meeting as being the basis for the Section 106 proceedings, said, “The court case was dismissed without prejudice, so the case can be brought again.” However, shortly after the January meeting, the Sun Times was the first to correctly report that, in fact, the case was dismissed with prejudice, meaning the case can not be brought to the court again. At the time, the Sun Times published fax pages that prove the Lewis and Clark National Forest office in Great Falls was aware of the decision. The case was decided by a federal judge in Great Falls.

As Murray and Bodily offered suggestions that Longwell move the drillsite, despite being told earlier that would start the 30 year process over again, Longwell commented that the lease was probably one of the highest potential prospects in the “lower forty-eight.”

While to some Longwell’s comment might seem to be hyperbole, the region has undergone extensive study since the first oil wells in Montana were drilled along the shore of Kintla Lake, now part of Glacier National Park. In last week’s issue, the Sun Times carried a report out of Canada that said a well, in the thrust belt just over the Canadian border, was producing 570,000,000 cubic feet of natural gas per day. When the Waterton, Pincher Creek and Lookout Butte fields were being developed just over the border, newspapers and trade journals of the time carried regular reports of wells producing in excess of 100,000,000 cubic feet of gas per day. Due to the heat and pressure from the events that formed the Rockies, wells in the thrust belt tend to produce gas and gas condensates. Some wells in the region are capable of producing a “distillate,” or naturally occurring gasolene.

As the meeting wore on, the frustration began to show with Lechner, the attorney, asking William Avey, if the dialogue continues, will it mean “more NEPA (National Environmental Protection Act) studies… more EIS (Environmental Impact studies}…. more NEPA studies… more EIS studies…” Avey replied, “Pretty much.” Longwell said to Avey, “Mr. Avey, you have put up a brick wall. You are pushing out the ‘little guy’.” Longwell continued, “Mr Avey, if the Forest Service had done it’s job thirty years ago, we would not be here today.”

Zane Fullbright, a Bureau of Land Management Archeologist who was in the audience, cut to the chase with a comment that caught the room by surprise, saying, “The tribe is not the decision maker on this. The solution could be slapping five million dollars into the hands of the tribe.”

Joe Large asked Avey what effects the TCD has on Multiple Use, a legal doctrine that makes clear that all uses are to be considered for public lands. Avey replied that Multiple Use does not mean every piece of land can be used for every purpose, not answering Large’s question.

Rudy Tanklink, a Great Falls resident asked how many TCDs are in Montana. A member of the State Historic Preservation Office, one of the consulting parties taking part in the meeting, said there were many “large ones” in Montana. According to a document listing TCDs across the country provided to the Sun Times by the Forest Service, there are not that many TCDs, but they are concentrated in the western states. The Badger-Two Medicine, at about 160,000 acres, ranks third in size. Many of the TCDs are small in size, some only a fraction of an acre. Many of the larger TCDs have been determined to be “eligible,” which, according to the Forest Service automatically makes the lands that fall with a TCD… a full fledged TCD, or a de facto wilderness, done without congressional approval.

Longwell told the consulting parties that the Forest Service’s determination that the Badger-Two Medicine was a TCD could not stop the development of the well. Bodily said that was correct, but any adverse effects have to be addressed before drilling could move forward.

As the meeting drew to a close, the Forest Service pressed Longwell to continue the process. Lechner, the attorney, asked that more information hidden from the public in the most recent, heavily redacted ethnographic study, be disclosed. Lechner showed a page with all the text blacked out, drawing a laugh from the room. This is the third study conducted at taxpayer expense, yet the Forest Service refuses to disclose the findings. The Forest Service replied that it would consider the request. “You are asking us to mitigate issues with the wellsite, but you are not telling us what you want us to mitigate,” said Lechner.

A few days after the most recent 106 meeting, news  reports carried by the Associated Press reported that the fight by Sidney Longwell to drill the well began in the 1990s. The report also claimed that Sidney’s lease was the only lease still active in the Badger-Two Medicine. Both reports are incorrect.

As recorded with the Bureau of Land Management (BLM), the agency that is responsible for the subsurface minerals (oil and gas), this process began on September 22 of 1981, when the lease, or “case”, was established. On that date, a non-competitive “lottery” was held. The lottery was the idea of the Reagan administration, the intent being that the average citizen should be able to have a shot at getting a producing, profitable oil lease.

In May of 1982, the lease was issued to Sidney Longwell.  On October 1, 1985, the lease was suspended. In suspension, the clock on the 10 year lease term does not advance, but nothing can be done to develop the lease. The reason for that  suspension was the Badger-Two Medicine Environmental Impact Study.

Curiously, according to the BLM records, the suspension was lifted for one day. On June 29 1993, it was lifted, and the next day the suspension was re-instated. The record shows that the second suspension was a Secretarial Decision / Badger 2 Medicine.

As to Sidney Longwell being the only holdout in the Badger-Two Medicine, that too does not reflect the record.

A document dated 2011 lists “Federal Leases within the Badger-Two Medicine Area.” The four page document lists almost 50 leases, including the Sidney Longwell lease. Of those, about 30 leases have been relinquished. Most of those leases show the of the leases were held by Chevron and Trout Unlimited. The BLM seems to have scrubbed their database of the detail reports regarding the relinquished leases, making it impossible to find out if the leaseholders traded for other properties, or took the tax incentive.

The remainder of the leases, are, like Mr. Longwell’s, still held in suspension. A read of the details of the leases shows a mix of original leaseholders, from individuals, to firms like BHP, now BHP Billiton, the world’s largest mining company, based in Australia. Current leaseholders include Hess, Devon, Fidelity Exploration & Production and JMI Energy. That group, and Devon itself, have a majority of the leases.

One lease, known as MTM 55320, is held by the J.G. Kluthe Trust “A”. The lease contains 3,982 acres.

The list includes “Solenex,” a misspelling of the name of Sidney Longwell’s company, Solonex. Also shown is a lease, 7,640 acres, held by W.A. “Tex” Moncrief, Jr of Moncrief Oil, based in Fort Worth, Texas. Moncrief Oil was founded by legendary Texas “Wildcatter” Monty Moncrief.

Of all the leases still in suspension in the Badger-Two Medicine, the Moncrief lease is the only one that has a history of modern drilling activity. In the early 1960s, the “Kiyo” well was spud. Shortly after drilling began the bit punched through an underground cavern. Circulation was lost and drilling ceased. The rig was moved a short distance and the Kiyo 1-A was spud in 1963. The Kiyo 1-A was drilled to 11,500 feet, encountering the Bakken Formation at 2,810 feet and again at 4,662 feet. The repeated formations are a classic example of an overthrust.

The Kiyos are included in the Traditional Cultural District, despite being located near a communications facility on Mount Baldy. A road passes near the wellsites, offering access to the Mount Baldy facility. While most of the road is on US Forest Service land, the road begins on private land, and those landowners, in a dispute with the Forest Service, no longer allow the agency access.

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Author: montanaoilreport

After my first job at a newspaper -- delivering papers for the Jackson (TN) Sun, ink was in my veins. Since the 1970's I've worked in every area of the Printing and Publishing industry, with most of that time spent in the pressroom. In 2008 I moved to Montana and purchased the Sun Times of Fairfield (fairfieldsuntimes.com). In 2011 I realized that most media outlets were either ignoring, or attacking, the growing oil and gas industry in Montana, so I started the Montana Oil Report as the source of information on this important industry.

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