Red Lodge Clearinghouse

FWS worked with the company, Canadian-based Lexam Explorations, to establish restrictions to protect migratory birds and wetlands during the drilling of two 14,000-foot test wells. But the agency did not conduct a formal environmental review, with the opportunity for public comment, which environmental groups argued was required under the National Environmental Policy Act. The San Luis Ecosystem Council filed suit last summer to force FWS to conduct a full NEPA analysis.

Judge Walker Miller agreed with the council, ruling Nov. 28 that FWS "shall prohibit all ground-disturbing activities related to the exploration and development of the mineral estate underlying the Baca National Wildlife Refuge during the National Environmental Policy Act process."

"The public owns these lands now, and the public deserves to have some kind of process where they can express their concerns," she said. "We're talking two 14,000-foot wells. They're literally going to the aquifer's floor."

The 92,500-acre refuge was created by Congress in 2000 and established in 2003 after a complex series of land transfers and purchases involving BLM lands and the private Baca Ranch. But the mineral rights remained in private ownership.

Canaly said drilling in the refuge would undermine FWS's mission to protect the lands. FWS's interim management plan for the refuge says it was created for the purpose of "restoring, enhancing and maintaining wetland, upland, riparian and other habitats for wildlife, plants and fish species that are native to the San Luis Valley."

Refuge managers are still working on the management plan for the refuge, and it is not yet open to the general public.

The drilling proposal is also opposed by area residents in the eclectic Crestone/Baca community, where ranchers, artists and Buddhist monks coexist. The community is about a mile from the proposed drilling sites, according to the council.

'We can't stop this'

But refuge manager Ron Garcia noted that the company owns the mineral rights and has a legal right to access any oil and gas that may lie beneath the refuge. FWS is also bound by a surface agreement established between the company and the land's previous owners, he added.

"We can't stop this, but we can do everything we can to make sure our concerns are addressed," Garcia said.

The company has agreed not to undertake road construction or drilling during the summer months, when wetlands and wildlife are most sensitive to disturbance, and to reclaim and re-contour the well sites and a mile of new road that will be constructed for the operation, he said. Lexam will also have to dig monitoring wells to make sure drilling is not harming water quality, he added. Furthermore, FWS has asked the Colorado Oil and Gas Conservation Commission, which is charged with issuing drilling permits, to include stipulations that require Lexam to encase the well bores in cement to prevent any leakage into the aquifer.

Lexam Explorations officials did not return calls seeking comment.

Typically, national wildlife refuges are given permitting authority for activities on the refuge in the law that creates them. But in the rush to protect the Baca Ranch as a refuge and protect its water, that provision was overlooked, Garcia said.

"With most refuges, you build it right into the deed, so most refuges aren't put in this situation," he said. "With this one, there was an urgency to acquiring the land, and that just didn't get negotiated into the deed."

FWS had actually begun crafting an environmental assessment last summer, after environmental groups and citizens expressed their concerns about the lack of a formal NEPA process, he added. The EA will be issued next week, Garcia said, adding that it will include many of the same requirements that the company has already agreed to.

If the assessment determines that there would be no significant impact from the drilling, the organization likely will file suit to try to force the agency to conduct a full EIS, Canaly said.