On April 27, 2009 the United States 10th Circuit Court of Appeals issued a decision invalidating the Bureau of Land Management’s oil and gas drilling plan for New Mexico’s Otero Mesa. The court ruled that the BLM’s original Resource Management Plan Amendment, which opened the vast majority of Otero Mesa to oil and gas leasing and limited protection for the desert grasslands, was fatally flawed due to its failure to consider protection for Otero Mesa and the Salt Basin Aquifer.
The court ruled that the BLM had to consider an alternative that closed Otero Mesa to oil and gas leasing, admonishing the agency that “[d]evelopment 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.”
“Today’s court ruling underscores what has been at the heart of the Otero Mesa debate for the past eight years,” said Nathan Newcomer, Associate Director of the New Mexico Wilderness Alliance. “The BLM made oil and gas development in Otero Mesa the number one priority over the values of wilderness, wildlife and water, and it’s time now for the agency to own up to its responsibilities and do what is right for this special place.” The New Mexico Wilderness Alliance has inventoried Otero Mesa and found more than 500,000 acres suitable for wilderness designation.
The court went on to write that, “applying the rule of reason, we [the court] agree with the New Mexico Wilderness Alliance that analysis of an alternative closing the Mesa to development is compelled.”
The court also rejected the BLM’s position that there were no significant risks to the Salt Basin Aquifer, which contains millions of acre-feet of potable water, from oil and gas, noting that the agency had not reviewed “relevant data” and characterized the information included in the agency’s own documentation as “point[ing] uniformly in the opposite direction from the agency’s determination, we cannot defer to that determination.”
Further, the court required the BLM to thoroughly examine the potential destruction of fragile desert grasslands from its proposed management approach, which was not included in the original draft provided to the public. In dismissing the agency’s claim that wildlife habitat would not be affected by a complete change in approach, the court analogized the BLM’s approach as claiming “that analyzing the likely impacts of building a dirt road along the edge of an ecosystem excuses an agency from analyzing the impacts of building a four-lane highway straight down the middle, simply because the type of impact—habitat disturbance—is the same under either scenario.”
“The BLM cannot simply decide to risk the utter destruction of irreplaceable resources like Otero Mesa and ignore public and scientific concerns,” said Nada Culver, Senior Counsel with The Wilderness Society’s BLM Action Center. “The 10th Circuit has sent a clear message to the BLM that the agency must protect all of our natural resources and ensure that any decisions are based on actual facts and science.”
The ruling came in connection with a lawsuit filed by a coalition of conservation organizations led by the New Mexico Wilderness Alliance, and a lawsuit filed by the State of New Mexico.