American Oil and Gas Reporter - April 2016 - 21

IndustryDigest
while reducing impacts to the bird and
its habitat."
TIPRO says a rangewide 2015 aerial
survey indicated the lesser prairie
chicken population had increased 25
percent in the previous year.
Then on March 1, the Texas Alliance
says, a three-judge panel of the D.C.
Circuit upheld USFWS's 2012 decision
not to list the dunes sagebrush lizard,
which was confirmed earlier by the U.S.
District Court for the District of
Columbia (AOGR, November 2014, pg.
163).
The Defenders of Wildlife and the
Center for Biological Diversity, which
had challenged the no-list decision and
also appealed the lower court ruling,
contended USFWS improperly relied on
voluntary conservation agreements in
Texas and New Mexico, which the
environmental groups argued were "not
regulatory mechanisms and (were) too
speculative to ensure conservation of
the species," the Alliance says.
Writing for the court in Defenders of
Wildlife v. Sally Jewell, the Alliance
says Judge Judith Rogers held, "The
Texas plan may not be foolproof, but
neither is every regulatory regime. The
evaluation of the adequacy of the Texas
plan involves the service's judgment
based on its expertise and experience.
Appellants have failed to demonstrate
the service was arbitrary and capricious
in exercising that judgment." ❒

Appeals Court Upholds
Habitat For Polar Bears
SAN FRANCISCO-Alaska looks to
lose possible oil and gas acreage in the
Beaufort and Chukchi seas after a
federal court overturned a lower court
ruling that the government incorrectly
sought to designate critical habitat for
polar bears under the Endangered
Species Act.
The U.S. Fish & Wildlife Service
proposed designating critical habitat in
Alaska in 2009, establishing three units:
an ice sea habitat that comprised 95.9
percent of the designation; a terrestrial
denning habitat; and a barrier islands
habitat. Those designations put 187,000
square miles off limits to proposed
green-field and expanded oil and gas
projects on Alaska's North Slope, court
documents say.
Several parties-including the Alaska
Oil & Gas Association, Alaska Native

corporations, and the state-filed suit
over the proposal (AOGR, April 2011,
pg. 26).
The U.S. Court of Appeals for the
9th Circuit ruled Feb. 29 that the U.S.
District Court for the District of Alaska
was wrong when it vacated USFWS's
critical habitat designations.
In its 2013 decision, the district court
ruled USFWS failed to explain why it
needed to protect so much land, and did
not follow federal procedures when it
deemed portions of Alaska as critical
habitat (AOGR, February 2013, pg. 29).
In overturning the district court, the
9th Circuit held USFWS's habitat
designation was not arbitrary,
capricious, or otherwise in
contravention of applicable law. It ruled
the district court held the agency to a
standard of specificity that the ESA did
not require, and that the standard
followed by USFWS-looking at areas
that held assets required for sustained
preservation of polar bears-followed
statutes.
The 9th Circuit further held that
USFWS's designation of some acreage
as critical denning habitat was not
arbitrary because it contained areas
requiring protection for both birthing
and acclimation of polar bear cubs, and
the agency adequately explained its
treatment. It says USFWS drew rational
conclusions from the best available
scientific data, as required by the ESA.
U.S. Senator Lisa Murkowski, RAk., assailed the 9th Circuit's decision,
calling it an abuse of the ESA that
would have serious consequences for
Alaska's already struggling economy.
"The most up-to-date research and
traditional knowledge indicate that polar
bear numbers are strong and healthy
across Alaska's Arctic," she says. "It is
clear once again that decision makers
outside of Alaska are overreaching and
do not understand the impact this will
have on those who live, work, and raise
families in the Arctic." ❒

Ohio Preemption Ruling
Rejects Underpinnings
Of Local 'Bills Of Rights'
COLUMBUS, OH.-In a legal action
that won't seem to go away, the Ohio
Oil & Gas Association reports Ohio
courts again have upheld the state
Department of Natural Resources'

preemptive authority to regulate oil and
gas activity, while at the same time
dismissing legal underpinnings of socalled community bills of rights.
On March 3, OOGA says, Ohio's 8th
District Court of Appeals upheld a July
2015 decision by the Cuyahoga County
Court of Common Pleas that Ohio
Revised Code Chapter 1509 reserves oil
and gas regulation to the DNR. It was
the second time the Cuyahoga County
court had so ruled on the issue.
OOGA Director of Public Relations
Mike Chadsey recalls that voters in
Broadview Heights, Oh., in November
2012 approved an amendment to the
city's charter, making it illegal for any
person or corporation to engage in oil
and gas drilling and related activities,
including hydraulic fracturing and
waste disposal.
Bass Energy Inc., which had a
permit to drill from the DNR, filed a
lawsuit, and the Common Pleas Court
threw out the amendment in March
2015 in Bass Energy v. City of
Broadview Heights (AOGR, April 2015,
pg. 21).
Chadsey says Broadview Heights
officials then withdrew support for the
amendment, but a local anti-drilling
group, Mothers Against Drilling in Our
Neighborhoods (MADION), asked the
Common Pleas Court to reconsider its
decision.
Chadsey explains that MADION is
directed by Tish O'Dell, who also is
president of the Ohio Community
Rights Network, which campaigned for
the drilling ban, and is the Ohio
community organizer for Pennsylvaniabased Community Environmental Legal
Defense Fund.
After the Cuyahoga County Court of
Common Pleas dismissed MADION's
appeal last July, the group appealed to
the 8th District Court of Appeals.
Significantly, according to a
published analysis cited by OOGA, in
its March 3 ruling, the 8th District went
beyond state preemption and addressed
the legal underpinnings of community
bill-of-rights laws. The report says
MADION based its appeal on the
grounds that "the people have an
inalienable and fundamental right to
local community self-government" that
includes the right to pass laws
restricting or banning oil and gas
activities.
In upholding Bass Energy's right to
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