Koch’s Oak Mesa coal mine proposal raises issues of private property rights, BLM bias

So far anyway, private landowners north of Hotchkiss on Colorado’s Western Slope appear to be OK with Oxbow Mining’s proposal to at least explore the area for coal. That could change, of course, once the company owned by one of their neighbors, Bill Koch, tries to start mining.

“Thus far everything’s going really smoothly and I’m not anticipating any legal issues because we’re just drilling those exploration holes and we have specific requirements that we have to drill and reclaim to,” Oxbow’s Oak Mesa project manager Steve Weist said.

The U.S. Bureau of Land Management is taking public comments until Oct. 24 on Oxbow’s proposal to drill up to 43 exploratory holes and build nearly eight miles of new roads on public and private land over 13,873 acres of federally owned coal at Oak Mesa.

Oxbow is currently conducting cultural resource work (to look for Native American artifacts), as well as vegetation and wildlife surveys to look for endangered species in the area. The company hopes to have a BLM permit by the spring and do the exploration drilling next summer.

The BLM requires the exploration application to be conducted under the National Environmental Policy Act (NEPA). If the company determines the coal seam is of sufficient quality and thickness for commercial development, it will have to undertake a full Environmental Impact Statement (EIS) and a federal and state permitting process that could take up to five years.

Located about 20 miles from Oxbow’s existing Elk Creek Mine along the North Fork of the Gunnison River the proposed Oak Mesa Mine could recover up to 150 million tons of coal. Some area residents are leery of such a massive industrial undertaking in a largely agrarian area.

Weist says he’s obtained verbal consent from about 20 private landowners just to go ahead with the current Environmental Assessment (EA) work. He adds that only about 10 properties would actually see exploratory holes drilled, and only one hole would be drilled on federal land if and when a BLM permit is issued. Separate deals would have to be struck for actual mining.

But opponents of Oak Mesa say the BLM is fast tracking the exploratory permit process because the agency is “committed to the development of coal” despite its multiple-use mandate.

“It looks unfortunately like the BLM is rushing to appease the coal industry at the expense of landowners and the local environment,” said Jeremy Nichols, climate and energy program director for Denver-based WildEarth Guardians. “BLM brushes it off, but the fact is unless there’s consent, exploration can’t occur on private lands. This could be a big weak point in this whole Oak Mesa scheme.”

But according to Desty Dyer, a BLM mining engineer, federal laws enacted in 1916 and 1920 allow the mineral owner – in this case the federal government – to extract the resource regardless of consent from the surface landowners.

Dyer said the BLM, or its agent Oxbow, must first seek permission to mine the coal. If that doesn’t work, a deal must be struck. And if that doesn’t work, the mineral owner can go ahead and mine the coal anyway.

“So it kind of leaves the surface owner stimulated to make a deal – a reasonable deal,” Dyer said, adding that NEPA and the Surface Mining Control and Reclamation Act (SMCRA) of 1977 have complicated matters somewhat.

“All of those protections are in place as far as drilling or mining, but, as always, the more and more laws you pile on the more chance you give for lawyers and judges to get in on the deal and cloud the issues and start some trouble,” Dyer said. “You try to keep it simple, but it might not stay simple.”

One area landowner clearly won’t have a problem with a massive mining operation. Bill Koch, the billionaire industrialist whose brothers David and Charles own Koch Industries and fund many conservative and tea party political candidates, bought the historic 7X Ranch near Hotchkiss earlier this year for a reported $10 million.

Bill Koch often has funded Democrats and openly feuded with his brothers, but increasingly he’s been funneling more and more money to Republicans, including the U.S. congressman who represents the Oak Mesa area, Rep. Scott Tipton, R-Cortez.

Regardless of political influences, WildEarth’s Nichols would like to see the BLM take a more cautious approach to the Oak Mesa project.

“Coal comes first to the BLM, which is discouraging given their multiple-use mandate,” Nichols said. “Given how thoroughly they seem to be greasing the skids for the Oak Mesa coal mine, however, it just doesn’t seem like there’s an objective bone anywhere in the body of that agency.”

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