US appeals court sides with NM in Otero Mesa fight

From the Associated Press

By SUSAN MONTOYA BRYAN
4-29-09

The Bureau of Land Management failed to comply with federal law in developing a plan for managing oil and natural gas development on southern New Mexico’s Otero Mesa, an appeals court has ruled.

A three-judge panel of the 10th U.S. Court of Appeals in Denver said in a ruling filed Tuesday the BLM skirted the National Environmental Protection Act by not considering an alternative that would have put the mesa off limits to drilling and by not analyzing all of the likely impacts of the agency’s chosen alternative.

“BLM’s obligation to manage for multiple use does not mean that development must be allowed on the Otero Mesa,” the ruling states. “Development is a possible use, which BLM must weigh against other possible uses — including conservation to protect environmental values, which are best assessed through the NEPA process.”

The panel also affirmed a lower court ruling that federal law requires the agency to conduct site-specific analysis before leasing any parcels on the mesa.

Tony Herrell, the BLM’s deputy state director for minerals, said Tuesday the agency would review the decision.

“We treat these decisions very seriously and we want to very objectively analyze the decision and our own actions and then come up with what the right determination is,” he said. “If we have a weakness, then we will address it. If we believe we don’t, then we can go ahead and keep our appeal rights open.”

The appellate panel described Otero Mesa as the largest publicly owned expanse of undisturbed Chihuahuan Desert grassland in the United States. It’s home to hundreds of species of plants, mammals, reptiles, birds and insects.

It has become a battleground for environmentalists and the oil and gas industry. Drilling opponents have warned that oil and gas production on the mesa could impact the area’s wildlife and contaminate groundwater.

Nathan Newcomer, associate director of the New Mexico Wilderness Alliance, said the court’s decision highlights the issues that have been at the heart of the Otero Mesa debate for the past eight years.

“The BLM has put oil and gas development on Otero Mesa as the No. 1 priority over the values of wilderness, water and wildlife and it’s really now time for the agency to own up to its responsibilities to do what’s right for this special place and for New Mexicans,” Newcomer said.

During the long legal battle, BLM argued that it went to great lengths to ensure protecting the ecosystem while serving the needs of land-use parties. Under the plan, no more than 5 percent could be disturbed on the grasslands at any specific time.

Industry officials have called the plan one of the most restrictive in BLM history and that the area that would be open for drilling is very small.

Gov. Bill Richardson and other critics have argued that the plan is vague and doesn’t adequately address the impacts of oil and gas development on the region’s water resources and wildlife.

Richardson applauded the court’s decision Tuesday.

“This is a major boost in our fight to protect one of New Mexico’s most ecologically valuable and unique places,” he said in a statement.

New Mexico Energy, Minerals and Natural Resources Secretary Joanna Prukop said she was pleased with the ruling’s strong language regarding compliance with the National Environmental Protection Act.

“In additional to protecting the fragile ecosystem of the Chihuahan Desert, this decision will apply to development of all kinds on federal lands throughout the 10th Circuit and help assure that environmental impacts are appropriately considered,” she said.

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Coalition for Otero Mesa
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Contact us for more information about the Coalition for Otero Mesa, oil & gas development, or the ongoing effort to protect the last wild lands and open spaces in New Mexico.