Wednesday, April 29, 2009

State of New Mexico v. Bureau of Land Management

Apr 28: In the U.S. Court of Appeals, Tenth Circuit, Case No.06-2352. As explained by the Appeals Court, the litigation concerns the environmental fate of New Mexico’s Otero Mesa, the largest publicly-owned expanse of undisturbed Chihuahuan Desert grassland in the United States (over 1.2 million acres). From 1998 to 2004, the Bureau of Land Management (BLM or the Agency) conducted a large-scale land management planning process for federal fluid minerals development in Sierra and Otero Counties, where the Mesa is located. Ultimately, the Agency opened the majority of the Mesa to development, subject to a stipulation that only 5% of the surface of the Mesa could be in use at any one time.

Invoking the National Environmental Policy Act (NEPA), the Federal Land Management Policy Act (FLPMA), and the National Historic Preservation Act (NHPA), the State of New Mexico and a coalition of environmental organizations led by the New Mexico Wilderness Association (NMWA) challenged in federal district court the procedures by which BLM reached this determination. NMWA also challenged BLM’s decision not to consult with the Fish and Wildlife Service (FWS) under the Endangered Species Act (ESA) regarding possible impacts of the planned development on the Northern Aplomado Falcon.

The district court rejected the challenges, save for the plaintiffs’ argument that BLM erred in beginning the leasing process on the Mesa before conducting additional analysis of site-specific environmental impacts flowing from the issuance of development leases. The Appeals Court ruled, "Discerning serious flaws in BLM’s procedures, we affirm the district court’s conclusion that NEPA requires BLM to conduct site-specific analysis before the leasing stage but reverse its determination that BLM’s plan-level analysis complied with NEPA. Moreover, we affirm its conclusion that BLM complied with public comment provisions in FLPMA, and we vacate as moot the portion of the district court’s order addressing NMWA’s ESA claims."

New Mexico Attorney General Gary King commented on the decision and said, "This is great news for those who believe as I do that the preservation of Otero Mesa is critical to the health of people, wildlife and the environment In southeastern New Mexico. This decision confirms the position of the Attorney General's office that the Otero Mesa development plan did not properly take into consideration all the environmental impacts to the habitat and protection of groundwater in the area so this is a huge victory for us." The AG indicated in a release that the 10th Circuit reversed Judge Bruce Black on most issues concerning the propriety of issuing oil and gas leases on Otero Mesa. The Bureau of Land Management will likely have to complete an environmental impact statement on the entire Otero Mesa management plan; at least consider totally closing Otero Mesa to development; show more evidence for conclusions about impacts on the area's aquifer and; conduct further analysis before leasing.

Access the complete opinion (click here). Access the statement from the NM AG (click here). Access the New Mexico Wilderness Association website for more information (click here).

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