Albuquerque Journal

Wednesday, January 25, 2006

Otero Mesa Battle Begins; BLM Accused Of Altering Rules

By Tania Soussan
Journal Staff Writer
    The federal government is changing the rules as it goes along when it comes to overseeing oil and gas drilling at Otero Mesa, state and environmental attorneys argued in court Tuesday.

    Lawyers for Gov. Bill Richardson, Attorney General Patricia Madrid and a coalition of environmental groups squared off against the Bureau of Land Management in a three-hour hearing before U.S. District Judge Bruce Black in Albuquerque.

    The state and the environmental groups are suing the BLM over its plan to guide oil and gas development in southern New Mexico, saying the BLM didn't follow federal rules as it created and then adopted the plan. The groups say the BLM plan does not do enough to protect the area's Chihuahuan Desert ecosystem.

    The BLM changed course radically when it abandoned all the alternatives it had analyzed in a draft environmental impact statement and instead chose a new concept that includes less habitat and environment protections, said attorney Letty Belin, who is representing the state.

    "Everyone in the public was basically hoodwinked," she said, adding the public submitted comments on alternatives that all were tossed out.

    Andrew Smith, a U.S. Department of Justice trial attorney, said the changes Belin referred to actually were a small part of the big picture in the plan. He added that the BLM received and considered comments on its final plan.

    James Angell, attorney for the New Mexico Wilderness Alliance and the other environmental groups, said the BLM also changed its mind about the potential impacts on endangered Aplomado falcons.

    "They switched gears right at the last minute," Angell said.

    The BLM initially said a formal consultation with the Fish and Wildlife Service was needed because there were likely to be impacts on the falcon. It later reversed that decision.

    Smith said a letter from the agency spells out the reasons for the change: few sightings of falcons and no nesting activity in the area as well as additional habitat being set aside. He also said the BLM went through an informal consultation process.

    Belin and Angell also accused Smith of altering course in court Tuesday by arguing the BLM can add new drilling restrictions even after leases have been issued to oil and gas companies.

    Smith said a federal regulation gives the BLM authority to address new environmental concerns with "reasonable measures ... to minimize adverse impacts to other resource values."

    "The BLM can say, 'Sorry, you can not develop that (drilling permit) at all,' '' Smith said.
    Black said that suggests the companies have only "an illusory right."

    "It's a risky right, let's put it that way," Smith said.

    Belin said she was "frankly amazed" at Smith's position "because it is so contrary to case law and what BLM has said."