Baca National Wildlife Refuge

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BACA NATIONAL WILDLIFE REFUGE

In November of 2000, Congress passed and President Clinton signed legislation authorizing the creation of the Great Sand Dunes National Park. This legislation was the result of efforts by many local individuals and groups, including the Citizens for San Luis Valley Water, San Luis Valley Ecosystem Council and other conservation organizations, local governments in the SLV, state officials, local federal officials, and our Congressional delegation, that wanted to see the water in the aquifer protected. The legislation stated that when enough additional land had been acquired, the official designation would take place.

Over the course of the next four years, The Nature Conservancy acted as a broker in acquiring the additional lands for the Park, as well as the Baca National Wildlife Refuge and the Rio Grande National Forest. This included the purchase of the Baca Ranch, then held by Farrallon Corporation. At the time, the mineral rights had already been severed and sold to a third party, Lexam, and were not available for purchase. Farrallon could only sell the surface and water rights that it held. It was important to purchase the surface and water rights in the Baca Ranch, in a timely manner, in order to acquire the property needed for federal designation, and in order to avoid losing the ranch to a third party. In September of 2004, land acquisitions had been finalized, and the official designation was signed by Secretary of the Interior Gale Norton.

Because of the new lands that were acquired, the Great Sand Dunes National Park had begun the process of creating a General Management Plan late in 2003. The BWR, due to funding constraints from the USFWS, was not scheduled to begin their own comprehensive management plan until 2011. Surveys of the land, including studies of flora and fauna and cultural resources, were delayed as well.

In December of 2006, Lexam Explorations, who owned the mineral rights under the BWR, notified the FWS that they intended to drill two exploratory oil & gas wells. Since Lexam owned the mineral rights, and had a surface-use agreement in place that had been established with the previous owner, FWS took the position that they did not need to engage the National Environmental Policy Act (NEPA) over the issue.

Many citizens and environmental groups disagreed. In May of 2007, the San Luis Valley Ecosystem Council filed a lawsuit asserting that the FWS had a duty to implement NEPA, and involve public process, to protect the public interest in the BWR. The lawsuit established important safeguards for the refuge, and the FWS agreed to institute an Environmental Assessment (EA) before any exploratory drilling could begin.

Throughout the year of 2008, the EA process went forward. Over 47,000 comments were received from the public, including comments from many local entities that expressed concern over the fact that no Comprehensive Management Plan had been done for the refuge, and no baseline data existed for evaluating the effects of oil & gas drilling. Specific concerns about air quality were raised by both the NPS and the EPA, and the State Historic Preservation Office expressed concerns about the cultural resources that could be damaged by drilling, and requested accountability regarding how these concerns were addressed.

Links to Letters [PDF docs]:

Despite numerous comments and concerns, expressed both in scoping, and as reaction to the draft EA, the FWS issued a Finding of No Significant Impact (FONSI) in November of 2008.

As the EA process went forward, concerns arose about the role that Lexam Explorations and its consultants were playing in the creation of the EA. The Citizens for San Luis Valley Water Protection Coalition, who had been involved in water protection in the same area in the 1990’s, filed a Freedom of Information Act (FOIA) request, in which they asked for documents and internal communications between FWS, the DOI Solicitor’s office, Lexam, Lexam’s attorneys, and ENSR Corporation, a consultant working with Lexam. After a six-month period in which no documents had been produced, a lawsuit requesting those documents was filed in the United States District Court for the District of Colorado.

When these documents were released, it became evident that there was inappropriate influence, including specific wording and edits to the EA, and inappropriate exchange of information, between DOI Solicitor’s Office (specifically attorney Thomas Graf) and David Bailey and Thomas Sansonetti (Lexam’s attorneys) as well as consultants at ENSR Corporation (notably William Berg and Chantal Cagle).

Examples of this can be seen in the following documents:

By the spring of 2009, all FOIA documents had been disclosed, and the FOIA lawsuit was settled. Despite the fact that the EA was to be produced in an unbiased and scientific manner by the FWS, it was clear that the DOI Solicitor’s Office, Lexam’s attorneys and their consulting firm heavily influenced the findings that were incorporated in the final EA. Additionally, Attorney Thomas Graf (DOI Solicitor’s office) also made severe edits to the document and helped insure that the scope of the final EA was very narrow in its assessment of impacts from drilling. (Thomas Graf has since been fired.) The result was that the EA, and the FONSI Record of Decision, were not a true representation of either the science or the concerns expressed during the EA scoping and comment period. Further FOIA documents can be researched by contacting the WPC office at 719-589-1518.