Court flips ruling, tosses all claims against Chaco drilling

By Ellen M. Gilmer | 04/24/2018 07:30 AM EDT

Environmentalists were hit with a gut punch yesterday when a federal judge walked back his previous conclusion that some oil and gas development near Chaco Canyon, N.M., violated federal law.

Environmentalists were hit with a gut punch yesterday when a federal judge walked back his previous conclusion that some oil and gas development near Chaco Canyon, N.M., violated federal law.

The U.S. District Court for the District of New Mexico issued an opinion yesterday rejecting a full suite of claims raised by environmental groups opposed to oil and gas drilling on public and tribal lands near Chaco Culture National Historical Park.

"All of those individuals who visit those historic sites might be inconvenienced, or their experience might be less enjoyable, but that harm does not outweigh the potential hundreds of thousands to millions of dollars of economic harm the operators will endure," Judge James Browning wrote.


Since 2015, the groups have argued in court that the Bureau of Land Management routinely approves development in the area without adequately weighing impacts on the environment and cultural resources.

Located in a remote area of northwest New Mexico, Chaco Canyon holds thousand-year-old Ancestral Puebloan ruins, and the greater area is home to Navajo communities (Energywire, July 13, 2015).

Browning, a George W. Bush appointee, appeared to deliver a partial win to drilling opponents in late March when he issued an order agreeing with their claims that BLM violated the National Historic Preservation Act in approving some development.

He issued the March decision in a short order without an accompanying opinion. The order included a short overview of the issues, concluding that while BLM hadn’t violated the NHPA for all of the wells at issue in the case, it had for some of them "because some of the cultural resource analyses for those wells are conclusory, contain no finding, or are entirely absent from the record."

Environmental lawyers celebrated the order earlier this month as an important victory for the protection of cultural resources (Energywire, April 2).

But that victory was short-lived. Browning last night issued a full opinion — a whopping 132 pages — and pulled back his earlier NHPA conclusion.

Instead, he wrote that BLM adequately considered potential impacts near oil and gas wells. Chaco Canyon and related sites are outside the zone of the challenged wells’ impacts, he said.

"That contention fails, because the Protocols governing the BLM require it to consider effects on historical sites within the [area of potential effect], and Chaco Park and its satellites are outside of the wells’ APEs," yesterday’s opinion says. "Thus, that the BLM did not consider the wells’ effects on Chaco Park and its satellites did not violate the Protocols, so did not violate the NHPA."

Most of the wells are at least 10 miles away from the park and related outlier sites.

He added that impacts to cultural sites are considered adverse only when they could "physically destroy or damage the archaeological site."

"Such a limitation makes sense, as the archaeological site’s historical value stems from the historical data recoverable from the location and not the historical property’s setting or feeling associated with it," he wrote.

Browning also rejected environmentalists’ claims that BLM didn’t fully weigh potential impacts associated with hydraulic fracturing and horizontal drilling on wells in the area. BLM’s most recent resource management plan for the area, from 2003, does not closely analyze the techniques, and drilling critics argued that the agency should hold off on permitting while it works on updating the RMP.

The court found that BLM’s record supports the conclusion that fracking and horizontal drilling do not significantly harm the environment.

The plaintiffs could challenge the decision at the 10th U.S. Circuit Court of Appeals. The appeals court has previously denied the groups’ bid to halt permitting in the Chaco area.

Environmental groups involved in the case are Diné Citizens Against Ruining Our Environment, the San Juan Citizens Alliance, WildEarth Guardians and the Natural Resources Defense Council. They are represented in part by the Western Environmental Law Center.

Lawyers for the groups did not immediately respond to requests for comment last night.