2008-07-16_REVISION - C1980007 (3)

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tar A. 2007-'213 State Director's decision, addressed in Vessels' issue E. We proceed to focus on Vessels last Issue F regarding the applicability of the MLA. If Vessels does not prevail on that issue, its other legal assertions in issues A -D may be irrelevant. Even if inclusion of the Offending Special Stipulations would violate the MLA, Vessels still could not achieve its goal of bidding for MLA leases for GHV gas at another MLA competitive lease sale if the leases were not appropriately issued under the MLA. L The State Director's Decision. We agree with Vessels' issue E that the protest decision does not. appear to be properly informed as to the facts with respect to the nature of the gas for which "capture" is permitted under the subject leases. The State Director asserted that the point of the leases was to "capture the VAM," as defined by the EPA, Decision at 4, and that the VAM contains such a low concentration of methane that it does not rise to the level of a "gas" as defined by MLA implementing regulation 43 C.F.R. § 3000.0-5 (a). Decision at 3. By focusing on the low concentration of methane in VAM, the State Director thus determined that the leases do not permit recovery of "gas" and therefore are not MLA leases. This logic misses the entire nature of the project and undercuts the rationale of his decision affirming competitive bidding for MLA leases. First, the entire reason that some sort of gas capturing system was pursued by Oso and Vessels is that what is exiting the vents is not of the same composition as ordinary VAM. It has a sufficiently higher concentration of methane gas that it might be financially profitable to treat and sell it. It is not possible to know what the State Director might have believed had he properly understood the coal mining byproduct being captured. BLM compounded the problem by attempting to endorse the State Director's logic that the gob gas at the GHVs is riot "gas." BLM claims that neither VAM (which is a byproduct of the ventilation and fan system not at issue in this appeal) nor the mine vent gas emitted from the vents drilled by UAE to the mine depth (which is at issue) is "gas" within the meaning of 43 C.F.R. § 3000,0-5 (a). We cannot fathom BL.M's logic it asldiig the Board to construe that rule as defining methane as sometl irig other than "gas,'. merely because it is produced as an inadvertent b roduct of coal mining. We a es with Vessels that such a conclusion would-create disarray in the Department's efforts to regulate coalbed methane in other contexts. Second, whether or not the material emitted from the mine vents is "gas," if the State Director is correct that the leases at issue are not issued under the MLA, then there is no justification for his decision to deny the protest and uphold a competitive lease sale authorized solely for leases under that statute. Whether his underlying reasoning was correct or not, once he decided that BLM had offered 175 IBLA 21 ll/til d ?EiL 'ON 'd1Al i(I??? Ni.???+?71 ?t1Q7 '41 'n?n?? man Tu"v a YVA 69:9T 800Z/LZ/90