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Baca National Wildlife Refuge/Lexam Explorations

 

Baca National Wildlife Refuge & proposed land exchange:

Situation: In 2006, Lexam, Inc. a Canadian Mining Company, filed an application to drill two 14,000 ft test wells on the newly created Baca National Wildlife Refuge (BNWR). SLVEC filed a lawsuit in May of 2007, which forced the Fish and Wildlife Service (FWS) to undergo a NEPA process and provide a range of alternatives. In the spring of 2008, the FWS released anEnvironmental Assessment (EA) stating No Significant Impact of drilling. This decision was challenged by SLVEC with a Preliminary Injunction.

            In 2011, SLVEC reached a settlement agreement with US Fish and Wildlife Service. The stipulated Agreement was filed just days after a request by Colorado Senator’s Udall and Bennet, “to facilitate a discussion about buying out mineral rights in Baca National Wildlife Refuge to protect it from future drilling.” The senators sent a letter asking Dan Ashe, the Director of the U.S. Fish and Wildlife Service, for a meeting with stakeholders to explore potential solutions to conserving the refuge's natural resources.” These actions have been supported by years of public outcry (28,000 responses) for buyout and will further efforts to work towards permanent protection of theBaca National Wildlife Refuge and adjacent public lands.         

            Although litigation had been focused on the Baca Wildlife Refuge, other federal landmanagement agencies have expressed interest in a broad mineral acquisition that would also protect the unique character of the Sand Dunes National Park and the National Forest Baca Mountain Tract, part of the 2000 Great Sand Dunes National Park and Preserve legislation.

            In March 2012, Senator Udall’s and Bennet office, regional and DC, brought together almost 30 representatives from various agencies and interested parties to facilitate a meeting. Present were: 4 representatives from US Fish and Wildlife, including the real estate office, 4 reps from National Park Service, including the new Superintendent, Forest Service real estate office, the Rio Grande Water Conservation District- SLV water users, 2 reps from Trust for Public Land, the Dept. of Interior office, Saguache County Commissioner, BLM’s real estate office, SLVEC and Lexam’s representatives from Toronto.            

            Lexam made an announcement. Understanding the financial constraints imposed on the federal government at this time, they offered a land exchange. Lexam already has anoperating gold mine in Nevada and would like to build a facility next to the mine, not to expand the mine, but to improve efficiency in operations.  This property is currently owned by the BLM so Lexam is proposing a land exchange of that BLM property in exchange for divestiture of all their mineral rights within the San Luis Valley. This land exchange will require an act of congress since the mineral/land properties in question are contained within two different states.  BLM was tasked to go back and discuss this proposal within various BLM and congressional offices.  It appears to be a proposal worthy of consideration, but research will need to be conducted in coming months. The various interests left the meeting feeling cautiously optimistic.

Plan, Goals, and Objectives: Federal Mineral Rights acquisition within the San Luis Valley.

            During negotiations in 2010, Lexam made an offer to sell their minerals rights for $8.3 million. Trust for Public Land (TPL) agreed to act as negotiator, with the original intention to facilitate purchase with private funding support until federalfunds could be appropriated to move all the rights into the public domain, and then retired. SLVEC secured funds and a Mineral Remoteness Report was developed and given to the Congressional Delegation, Public Land Managers, Water Users, Trust for Public Land and the Dept. of Interior in the fall of 2011.  

            SLVEC received commitment from a private source to fund a full mineral appraisal of Lexam’s mineral rights when that becomes necessary and made that announcement as a point of negotiation at the March 1st meeting.  In coming months, the Senatorial offices of Colorado and Nevada will meet to determine the feasibility of this land exchange and in the event of agreement, will prepare legislation to move it through congress. SLVEC will continue to mobilize public support for Mineral rights/BLM Land exchange. We believe that because there is a win/win interest to both the public and private sector, that it will not attract much controversy in congress.

Evaluation: Success will be achieved when serious negotiations are underway and legislation is drafted to exchange Nevada BLM land for the mineral rights under the former Baca Ranch, which includes the Wildlife Refuge, Great Sand Dunes National Park, and the Forest Service Baca Mountain Tract. he Baca National Wildlife Refuge is Colorado’s largest and newest Refuge.  Flanked by the Sangre de Cristo Mountains to the east and the Great Sand Dunes National Park & Preserve to the south, the BNWR spans approximately 92,500 acres.  But this largely untouched refuge is under threat from oil and gas development. 

After a multi-year battle to protect the water in the San Luis Valley aquifers, the BNWR was created by the Great Sand Dunes National Park and Preserve Act of 2000.  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. The legislation included the expansion of the Great Sand Dunes National Park and Preserve, the creation of the Baca National Wildlife Refuge, and added additional acreage to the Rio Grande National Forest, known as the Baca Mountain Tract.  

Over the course of the following four years, The Nature Conservancy acted as a broker in acquiring the additional lands for the Park, the Refuge, and the Forest.  This included the purchase of the Baca Ranch for $33 million, then held by Farallon Corporation.  At the time, the mineral rights had already been severed and sold to a third party, Lexam, and were not available for purchase.  Farallon 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 then 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 BNWR, due to funding constraints from the US Fish &Wildlife Service (FWS), 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, owner of the mineral rights under the BNWR, notified the FWS that they intended to drill two 14,000-foot deep exploratory oil & gas wells (see map). 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, and that there was no need to solicit public comment. 

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 BNWR.  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 National Park Service and the EPA.  The State Historic Preservation Office and the Hopi Tribe expressed concerns about the cultural resources that could be damaged by drilling, and requested accountability regarding how these concerns would be addressed.    

Despite numerous comments and concerns, expressed both in scoping, and as reaction to the draft EA, (see Press Release on 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.  

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.  This helped insure that the scope of the final EA was very narrow in its assessment of impacts from drilling.  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. 

In September of 2009, at the request of SLVEC’s attorneys, U.S. District Court Senior Judge Walker Miller granted a Preliminary Injunction (PI) which recognized the likelihood that environmental groups would prevail in the lawsuit.  Judge Miller’s decision, subsequent settlement talks, and the small likelihood of finding developable minerals (0.03%, according to a USGS study), have created a situation where purchase and retirement of the mineral rights may be the best alternative.  Although litigation is focused on the BNWR, other federal land management agencies have expressed an interest in a broad mineral acquisition, which could further protect the Great Sand Dunes National Park and the Baca Mountain Tract of the Rio Grande National Forest. 

In January of 2010, during the process of settlement talks stemming from Judge Walker’s PI decision, Lexam became a willing seller and offered to have the Mineral rights purchased for $9.7 million. The current goal is the development and implementation of a public/private partnership that can move swiftly to meet the challenge of purchasing these rights on behalf of the American public and having them retired in perpetuity. 

SLVEC continues to advocate for protection of these lands.  In approving the legislation of 2000, Congress recognized that these lands offered “unique hydrological, biological, educational, and recreational values deserving of preservation into perpetuity.” 

We now have the historic opportunity to complete the process that began with the Park and Preserve Act of 2000 and protect this public lands complex for the American people.

Background Information

Original Lawsuit Filed by SLVEC 
Investigative Report on Endangered Species Act and Conflict between Science and Policy
Findings on Preliminary Injunction Order
Stipulated Settlement Agreement
Definition of Significance
NEPA Citizens Guide

Documents

Energy drilling may be avoided at wildlife refuge
Telesto Memo on Water Quality/Lexam
Press Release on Suit Filed Against Fish & Wildlife Service
Drilling delayed until August - Valley Courier Article
Drilling on Baca NWR Halted - Press Release
Stipulated Agreement