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COMMISSIONERS
May 15, 2018
Mary Jo Rugwell Gregory P. Shoop
State Director Acting State Director
Bureau of Land Management Bureau of Land Management
Wyoming State Office Colorado State Office
P.O. Box 1828 2850 Youngfield Street
Cheyenne, WY 82003‐1828 Lakewood, Colorado 80215
Re: TransWest Express Compensatory Mitigation of Lands with Wilderness Character
Dear Ms. Rugwell and Mr. Shoop:
In December of 2016, the Bureau of Land Management (“BLM”) released the Record of Decision
(“ROD”) for the TransWest Express Transmission Project (“Transmission Line”). The Moffat County
Commissioners participated during the National Environmental Policy Act (“NEPA”) process and were shocked
when the County learned that, at the last minute, the BLM introduced a management action in Appendix F
that requires compensatory mitigation for impacts caused by the Transmission Line to inventoried areas of
Lands with Wilderness Characteristics (“LWC”). The purpose of this letter is to request immediate corrective
action.
Pursuant to the TransWest ROD TransWest Express, LLC (“Company”) must “provide compensatory
mitigation for areas identified as having wilderness characteristics that will be impacted” by the Transmission
Line if those areas have not yet been considered for protection during a formal land use planning process.
App. F at 20. This is patently contrary to the plain language of FLPMA and controlling case law – the Secretary
must manage public lands “in accordance with the land use plans developed by him under section 1712 of this
title...” 43 U.S.C. § 1732(a) (emphasis added); 43 C.F.R. § 1610.5‐3. FLPMA prevents BLM from taking actions
inconsistent with provisions of a land use plan. Norton v. S. Utah Wilderness All., 542 U.S. 55, 69 (2004). Until
the plan is amended, BLM may not require compensatory mitigation “where the BLM has not yet considered,
through a land use planning process, whether to manage such areas for protection” under the TransWest
ROD.
NEPA does not require BLM to adopt a full‐blown mitigation plan. Robertson v. Methow Valley Citizens
Alliance, 490 U.S. 332, 353 (1989). The Court further held that because NEPA was procedural, NEPA does not
require that “action be taken to mitigate the adverse effects of major federal actions,” or that BLM “include in
every EIS a detailed explanation of specific measures which will be employed to mitigate the adverse impacts
of a proposed action.” Id. BLM may only require such mitigation if federal law requires, and as explained
below, federal law does not authorize, let alone require protection of LWCs.
221 West Victory Way, Ste 130
Craig, CO 81625 Don Cook Ray Beck Franklin A. Moe
(970) 824-5517 District 1 District 2 District 3
(970) 824-9191 (fax)
BLM has no legal authority to designate or manage LWCs. The mere preparation of an inventory or
identification of LWCs cannot change management or use of public lands. 43 U.S.C. 1711(a). By April 2011 –
well before the ROD was issued – Congress prohibited the expenditure of funds to implement Secretarial
Order 3310. See Dep’t of Defense and Full‐Year Continuing Appropriations Act, 2011, Pub. L. 112‐10, §1769
(Apr. 15, 2011). It is contrary to law and in excess of authority for a federal agency to expend federal
appropriations when Congress has prohibited the expenditure of federal funds for a program or activity. 31
U.S.C. §1341(a)(1)(A). Secretarial Order 3330 was also explicitly revoked by Secretarial Order 3349 and is
without any force and effect. The ROD’s compensatory mitigation, therefore, is a patent violation of FLPMA,
the Continuing Appropriations Act, and the current direction of the Department of the Interior.
The Commissioners have also learned that BLM Field Offices are each handling this issue differently.
For example, the White River Field Office takes the correct response and acknowledges existing RMP decisions
such that where the Transmission Line crosses an inventoried LWC area, no mitigation is required, but the
boundary of the LWC is adjusted. The Little Snake Field Office, however, ignores the inconsistency and
requires the BLM to mitigate LWCs.
The Commissioners request that your respective State Offices adopt immediate corrective action to
ensure that each Field Office through which the Transmission Line runs does not require compensatory
mitigation for alleged impacts to LWCs.
Respectfully,
221 West Victory Way, Ste 130
Craig, CO 81625 Don Cook Ray Beck Franklin A. Moe
(970) 824-5517 District 1 District 2 District 3
(970) 824-9191 (fax)