Crestone Eagle, January 2008:
U.S. District Court temporarily halts
drilling in Baca Wildlife Refuge
by Ceal Smith
Citizens and wildlife in the San Luis Valley
were granted important protections for the Baca National Wildlife
Refuge (NWR) when Colorado Federal District Court Judge Walker
D. Miller ruled on Nov. 29 that the US Fish and Wildlife Service
“shall prohibit all ground disturbing activities related
to the exploration and development of the mineral estate underlying
the Baca National Wildlife Refuge during the National Environmental
Policy Act process.”
Judge Miller issued the ruling in response to a lawsuit filed
in May 2007 by the San Luis Valley Ecosystem Council (SLVEC)
against U.S. Fish and Wildlife Service (USFWS) to address
Canadian owned Lexam Explorations, Inc’s. (Lexam) “high-risk”
proposal to drill two 14,000-foot oil or gas wells in the
newly established Baca NWR.
The suit asked the Federal District Court to ensure that
drilling activities cease until potential impacts are fully
assessed and the public is allowed to participate in the formal
decision-making process as required by federal laws. These
laws, including the National Environmental Policy Act (NEPA),
require USFWS to show whether a proposed action serves a legitimate
purpose and to disclose significant environmental impacts,
alternatives and mitigation measures.
USFWS took the initial position that it had no regulatory
authority over Lexam’s activities due to the dual ownership
of surface and mineral rights, also known as a “split-estate.”
SLVEC’s lawsuit asserts that USFWS has ample legal authority,
based on Colorado and federal laws, to protect the Baca NWR—even
where the mineral interest is owned privately. The Court’s
ruling is a major victory that halts Lexam’s plans to
drill in the Baca NWR until a full examination of potential
impacts is completed under NEPA, a process that could potentially
The NEPA process is now in effect on several fronts. In Aug.
2007 USFWS initiated a 30-day scoping period to identify public
concerns about the drilling as required by NEPA. The agency
was flooded with almost 50,000 letters, virtually all opposed
to the drilling. These citizen concerns, and others identified
by USFWS and other affected agencies, form the basis of the
impacts and alternatives to be addressed in the forthcoming
draft Environmental Assessment (EA).
Although USFWS was expected to release the draft EA for public
review in early December, there have been a series of delays.
One possible reason for this is the failure of USFWS to engage
other Federal and non-federal agencies in the NEPA process
in a timely manner. The Council on Environmental Quality (CEQ),
which is responsible for overseeing NEPA, requires that Federal
agencies implement NEPA “in cooperation with State and
local governments.” CEQ cites many benefits of cooperating
agency participation including: early disclosure of important
information; application of technical expertise; avoiding
duplication with other Federal, State, Tribal and local procedures;
and establishing a mechanism for addressing intergovernmental
The Saguache Board of County Commissioners (BOCC) expressed
an interest in being a cooperating agency with USFWS early
in the process. In November they sent a letter to the USFWS
Washington office requesting a formal cooperating agency agreement.
They did not receive a response and sent a new request to
the USFWS District office (see: www.saguachecounty.net for
a copy of the letters) on Dec. 20. Citizens groups have requested
that USFWS delay the release of the draft EA in order to give
the County, and other eligible agencies time to formalize
cooperating agency agreements.
On the State level, it’s not yet known how the Court’s
decision and NEPA will affect the Colorado Oil and Gas Conservation
Commission’s (COGCC) process of approving Lexam’s
drilling permits. The COGCC is pressuring the County to comply
with the old industry-biased rules, accept the same flawed
conditions applied to Lexam’s original permits and sign
an MOU with Lexam.
There are enormous gaps in understanding about sensitive
species, wetlands and the potential impacts of drilling 14,000’
through the complex Closed Basin—North America’s
largest contiguous—aquifer system. Until an Environmental
Impact Statement (EIS) or Comprehensive Conservation Plan
is completed for the Baca NWR, these impacts cannot be determined.
Both NEPA and the COGCC new rule-making processes could lead
to more effective protection for the vital resources of the
Baca NWR, as well as the health, safety and welfare of the
affected communities. Citizens groups are requesting delay
in approval of Lexam’s permits until after the NEPA
process is complete and COGCC has had the chance to review
the 18 proposed permit conditions under the spirit, if not
the actual rules, currently being developed.
For more information about NEPA or for a schedule of upcoming
actions and events, call 256-5780, email: firstname.lastname@example.org
or visit the Lexam webpage at www.slvec.com.
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