Ellen M. Gilmer

Chaco Canyon is home to ancient tribal artifacts, while the surrounding area includes oil and gas wells, ranches, and Navajo communities.

A federal court has rejected environmental claims against oil and gas development around the revered Chaco Canyon area of New Mexico. But the court agreed with critics that federal officials violated historical preservation laws in approving drilling projects there.

In an unusual Saturday order, the U.S. District Court for the District of New Mexico scrapped many of the arguments made over the past several years by a coalition of environmentalists and tribal advocates who say the Bureau of Land Management is letting development get too close to cultural sites and Navajo communities.

Judge James Browning, a George W. Bush appointee, rejected claims that BLM hadn’t fully considered the environmental impacts but accepted arguments that the agency didn’t adequately consider effects on cultural sites.

At issue is an area of northwest New Mexico that holds thousand-year-old ruins and artifacts from the Ancestral Puebloan people, as well as sites that are culturally significant to the Navajo Nation. Chaco Culture National Historical Park is off-limits to drilling, but critics are concerned that BLM has recently allowed the region’s traditional oil and gas industry to rapidly expand, inching closer to Chaco and various “outlier” sites scattered throughout the high desert ( *Energywire* <https://www.eenews.net/stories/1060021627>, July 13, 2015).

In a 2015 lawsuit, the coalition raised two main claims: that BLM relied on outdated environmental studies to approve the development, and that BLM didn’t closely weigh the impacts on cultural sites as required under the National Historic Preservation Act.

In Saturday’s decision, the court rejected the first claim but partially accepted the second. “The BLM did not violate the NHPA for the wells with no historical sites within their Areas of Potential Effect, but it violated the NHPA for some of the wells whose APEs contain historical sites, because some of the cultural resource analyses for those wells are conclusory, contain no finding, or are entirely absent from the record,” Browning wrote.

WildEarth Guardians attorney Samantha Ruscavage-Barz, who is representing the environmental groups, celebrated that part of the decision. “We’re really pleased that the court recognized that BLM was not paying attention to drilling’s impacts on cultural resources in that area,” she said yesterday. “That’s a very important area; there’s a large cultural landscape out there. “BLM has not taken any of that seriously and has not really looked at the impacts.”

Claims made under the National Environmental Policy Act, however, did not fare so well. Browning rejected the groups’ arguments that BLM’s reliance on a 2003 environmental impact statement was unlawful because the old review did not delve into potential impacts from hydraulic fracturing and horizontal drilling, among other things.

Browning said the agency’s approach was adequate because “any difference in environmental impacts between the new technology and the technology that the 2003 [study] analyzed are insignificant.” The loss on the NEPA claim is a blow to environmentalists, who have long argued that BLM must directly weigh unique impacts of new technology used during production.

Unusual decision Browning’s decision came via a six-page order resolving issues that have been litigated for more than three years. The order is unusual, functioning as a preview of a formal opinion that’s expected to follow. The document simply sets out a summary of his conclusions on various issues, without including any analysis.

Browning noted in a footnote that he would issue a detailed opinion “at a later date.” He said the draft opinion is currently 75 pages long, and he needs more time to finalize it. His weekend order cannot be appealed until he issues that opinion and a final judgment.

The decision comes just a week and a half after the court scheduled oral arguments in the case for July. That court date now appears to be unnecessary, as Browning has already resolved the legal issues in the case.

But one of many key questions the order does not answer is what BLM must do to remedy its flawed NHPA analysis. Ruscavage-Barz noted that the court could require further briefing on that issue. She noted that she had never seen a judge issue a disjointed ruling and opinion the way Browning has done here. Courts occasionally issue urgent orders with the opinions to follow a few days later, but there was no such urgency in the Chaco case.