Coalition Joins Comments On Oil and Gas Leasing Near Chaco Culture

A. National Environmental Policy Act

1. BLM should continue to apply previous NEPA regulations.

Since 1978, regulations promulgated by the Council on Environmental Quality (CEQ) have guided every federal agency’s implementation of the National Environmental Policy Act (NEPA), our nation’s environmental “Bill of Rights.” 40 C.F.R. Part 1500 (1978). These regulations codified early judicial precedent interpreting the statute, provided the basis for a substantial body of judicial precedent spanning over four decades, and formed the foundation for more specific regulations and policies enacted by individual agencies to implement their particular missions. BLM’s NEPA procedures are at the DOI Manual 516 DM 11 and BLM Handbook H-1790-1.

Over the vociferous objections of states, members of Congress, myriad conservation, environmental justice, and public health organizations, and the general public, on July 16, 2020, CEQ issued a final rule rewriting the entirety of its 1978 regulations. 85 Fed. Reg. 43,304 (July 16, 2020) (to be codified at 40 C.F.R. Part 1500). The final rule upends virtually every aspect of NEPA and its longstanding practice, contradicts decades of court interpretations of NEPA’s mandates, and undercuts the reliance placed on NEPA by the public, decision-makers, and project proponents. It does so by limiting the scope of actions to which NEPA applies, eviscerating the thorough environmental analysis that lies at the heart of the statute, reducing the ability of the public to participate in federal agency decision-making, and seeking to limit review of agency NEPA compliance. The legality of the final rule is being challenged in a number of federal lawsuits brought by national and regional environmental justice, outdoor recreation, public health, and conservation organizations, as well as by twenty-seven state attorneys general, territories, cities and agencies. ²Alaska Community Action on Toxics v. CEQ, No. 3:20-cv-05199 (N.D. Cal. July 19, 2020); Wild Virginia v. CEQ, No. 3:20-cv-00045-NKM (W.D. Va. July 29, 2020); Environmental Justice Health Alliance v. CEQ, No. 1:20-cv- 06143 (S.D.N.Y. Aug. 6, 2020); State of California v. CEQ, No. 3:20-cv-06057 (N.D. Cal. Aug. 28, 2020).

The new rule purports to apply to all new NEPA processes initiated after September 14, 2020 and provides agencies with discretion to apply it to ongoing NEPA processes begun before that date. 40 C.F.R. § 1506.13 (2020). The final rule directs agencies to revise their NEPA procedures to eliminate inconsistencies with the final rule by September 14, 2021 and seeks to prohibit agencies from imposing more stringent NEPA procedures, representing a massive change from the past 40 years where the regulations functioned as a floor, not a ceiling. Id. § 1507.3(b). In the interim, where existing agency NEPA procedures are inconsistent with the revised regulations, the final rule purports to control. Id. § 1507.3(a).

With respect to the Draft RMPA/EIS, BLM should notseek to apply the final rule. This process has been underway since February 2014 and is clearly not suitable for new governing principles at this late point in the process. Doing so would change the rules of the game midstream, creating significant chaos and confusion for the agency and the public, as well as legal liability. At the outset, BLM is still subject to regulations issued by DOI. To ensure that the environmental consequences of an action are properly considered Congress directed “to the fullest extent possible” that “all agencies of the Federal Government shall . . . develop methods and procedures . . . which will insure that presently unquantified environmental amenities and values may be given appropriate consideration in decisionmaking.” 42 U.S.C. § 4332(B). Consistent with the statute’s mandate, the DOI adopted implementing regulations that apply to the BLM. See 43 C.F.R. § 46.10 et seq. The DOI regulations incorporate by reference the implementing NEPA regulations originally drafted by CEQ in 1978. ³Id. § 46.20 (This part supplements, and is to be used in conjunction with, the CEQ regulations except where it is inconsistent with other statutory requirements.”). The CEQ Regulations were finalized at 43 Fed. Reg. 56003 (Nov. 29, 1978). See 43 C.F.R. § 46.20 (“This part supplements, and is to be used in conjunction with, the CEQ regulations except where it is inconsistent with other statutory requirements.”). Unless and until the DOI revises its own regulations, the BLM is still bound by the 1978 version of the CEQ regulations that are incorporated into DOI’s regulations.

In addition, it would be manifestly unwise and highly inefficient for agencies to begin implementing such sweeping changes in the absence of agency policies, procedures, guidance, and training. Agency data – although it was ignored throughout CEQ’s rulemaking process – demonstrates that existing inefficiencies in the NEPA process are largely attributable to inadequate training, budget, and other institutional challenges and factors external to NEPA procedures. ⁴See David Adelman et al., Comments on the Council on Environmental Quality NPRM Update to the Regulations for Implementing the Procedural Provisions of the National Environmental Policy Act, Docket Id. CEQ-2019-0003-169621, pp.7-10 (Mar. 9, 2020) (on behalf of 95 law professors). Layer on top of those inefficiencies the massive challenges with interpreting and applying the Trump Administration’s most significant and far-reaching rollback of environmental law, and it is a recipe for chaos, wasted taxpayer dollars, and litigation to try to apply the new CEQ regulations to the Mancos-Gallup planning process. That is especially true where the final rule creates conflict with governing case law, agency regulations and guidance, and longstanding practices that the public, decision-makers, and the courts have relied upon for the past four decades.

Moreover, even if they do ultimately go into effect, the new regulations cannot overcome the plain language of the statute and the weight of decades of precedent. The plain language of NEPA requires a thorough analysis of environmental effects. NEPA requires federal agency recommendations on “major Federal actions significantly affecting the quality of the human environment” to be accompanied by a detailed statement that discusses, among other things, the “environmental impact of the proposed action,” “[a]ny adverse environmental effects which cannot be avoided should the proposal be implemented,” and “the relationship between local short-term uses of man’s environment and the maintenance and enhancement of long term productivity.” 42 U.S.C. § 4332(2)(C). Since well before the issuance of any regulation, courts have confirmed that this language requires federal agencies to analyze the potential effects, including the indirect and cumulative impacts, of their actions. See, e.g., Hanly v. Kleindienst, 471 F.2d 823, 830-31, 836 (2d Cir. 1972); City of Rochester v. U.S. Postal Service, 541 F.2d 967, 972 (2d Cir. 1976) (citing Scientists’ Inst. for Pub. Info. v. Atomic Energy Comm’n, 481 F.2d 1079, 1086-87 (D.C. Cir. 1973)). Further, the Supreme Court has held that NEPA requires consideration of the “cumulative or synergistic environmental impact” of multiple proposals pending concurrently before an agency, and stated that such impacts “must be considered together. Kleppe v. Sierra Club, 427 U.S. 390, 410 (1976), citing NEPA, 42 U.S.C. § 102(2)(C). BLM may not seek to narrow the scope of the potential environmental consequences of the decisions it is making in the Mancos-Gallup RMPA.

2. BLM must comply with long-standing NEPA laws & policies.

B. National Historic Preservation Act

Section 106 of the National Historic Preservation Act (NHPA) requires federal agencies to follow a mandatory consultation process when proposed “undertakings” may affect historic properties. 54 U.S.C. § 306108; 36 C.F.R. Part 800. Land use planning is an “undertaking” subject to the Section 106 process. State Protocol Agreement Between the New Mexico Bureau of Land Management and the New Mexico Historic Preservation Officer Regarding the Manner in Which BLM Will Meet Its Responsibilities Under the National Historic Preservation Act in New Mexico 13 (requiring BLM to follow the process set forth in the Section 106 regulations for “Resource Management Plans (RMPs) and RMP Amendments”) [hereinafter “New Mexico Protocol]; see also Mont. Wilderness Ass’n v. Connell, 725 F.3d 988, 1008 (9th Cir. 2013) (treating land use planning as a Section 106 undertaking); San Juan Citizens Alliance v. Norton, 586 F. Supp. 2d 1270, 1292 (D.N.M. 2008) (same). Under the New Mexico Protocol, BLM must follow the Section 106 regulations, rather than the Protocol’s procedures, when engaging in land use planning. New Mexico Protocol at 13.

When, as here, BLM/BIA are evaluating alternatives for “large land areas,” the agencies may employ a “phased process to conduct identification and evaluation efforts.” 36 C.F.R. § 800.4(b)(2); see also id. (allowing federal agencies to “defer final identification and evaluation of historic properties if it is specifically provided for in . . . a programmatic agreement executed pursuant to § 800.14(b)”). A “phased” process allows BLM/BIA to complete the Section 106 process at a later time when “specific aspects or locations of an alternative are refined. . . .” Id. Nevertheless, at the land use planning stage, BLM/BIA must still ensure that they have made a “reasonable and good faith effort” to identify historic properties, consulted in “good faith” with Indian tribes, the New Mexico State Historic Preservation Office (SHPO), and other consulting parties, identified and evaluated potential effects on historic properties, and taken appropriate steps to address and resolve any adverse effects. Id. §§ 800.3 – 800.6. ⁵See also CEQ and ACHP, NEPA AND NHPA: A HANDBOOK FOR INTEGRATING NEPA AND SECTION 106, at 20, 26, 35 (Mar. 2013), available at https://www.achp.gov/sites/default/files/2017- 02/NEPA_NHPA_Section_106_Handbook_Mar2013_0.pdf.

Under the Federal Land Policy and Management Act (FLPMA), BLM must manage public lands “on the basis of multiple use and sustained yield ” 43 U.S.C. §§ 1701(a)(7). Accordingly, BLM must strive to achieve

a combination of balanced and diverse resource uses that takes into account the long-term needs of future generations for renewable and non-renewable resources, including, but not limited to, recreation, range, timber, minerals, watershed, wildlife and fish, and natural scenic, scientific and historical values; and harmonious and coordinated management of the various resources without per-manent impairment of the productivity of the land and the quality of the environment with considera-tion being given to the relative values of the resources and not necessarily to the combination of uses that will give the greatest economic return or the greatest unit output.

Id. § 1702(c). Importantly, as the Tenth Circuit has stressed, “[i]t is past doubt that the principle of multiple use does not require BLM to prioritize development over other uses.” N.M. ex rel. Richardson, 565 F.3d at 710; see also Nat’l Mining Ass’n v. Zinke, 877 F.3d 845, 872 (9th Cir. 2017) (“Nor does [multiple use] preclude the agency from taking a cautious approach to assure preservation of natural and cultural resources.”).

Further, BLM must ensure that its land use plans are based on an “inventory of the public lands, their resources, and other values. . . .” 43 U.S.C. § 1712(c)(4). “This inventory shall be kept current so as to reflect changes in conditions and to identify new and emerging resource and other values.” Id. § 1711(a). The scope of the inventory requirement encompasses the full range of multiple uses specified in FLPMA. Or. Natural Desert Ass’n v. BLM, 625 F.3d 1092, 1099 n.4 (9th Cir. 2010). In addition to the inventory requirement, BLM must ensure that land use plans are “consistent with State and local land use plans to the maximum extent he [or she] finds consistent with Federal law and the purposes of this Act.” 43 U.S.C. § 1712(c)(9).

Finally, BLM has a responsibility to “take any action necessary to prevent unnecessary or undue degra-dation of the lands.” Id. § 1732(b). This dual requirement means that BLM must proactively “prevent, not only unnecessary degradation, but also degradation that, while necessary. . . , is undue or excessive.” Mineral Policy Ctr. v. Norton, 292 F. Supp. 2d 30, 42 (D.D.C. 2003). To satisfy these requirements, BLM must “disapprove an otherwise permissible . . . operation because the operation . . . would unduly harm or degrade the public lands.” Id.

D. National Park Service Organic Act of 1916

In contrast to BLM’s “multiple use mandate” under FLPMA, units of the National Park System (“parks”) are managed by the National Park Service (NPS) under a significantly different statutory mandate established by the NPS Organic Act of 1916, which states, in part:

[T]he fundamental purpose of the said parks, monuments, and reservations… is to conserve the scenery and the natural and historic objects and the wild life therein and to provide for the enjoyment of the same in such manner and by such means as will leave them unimpaired for the enjoyment of future generations. (54 U.S.C § 100101(a))

Courts have consistently interpreted the Organic Act as giving conservation priority over use such that “when there is a conflict between conserving resources and values and providing for enjoyment of them, conservation is to be predominant” (NPS Management Policies 2006 §1.4.3).

There are two units of the National Park System within the Planning Area for the Draft RMPA/EIS. These are:

1. Aztec Ruins National Monument, Aztec, NM: Building remains of this large Pueblo Indian community from the 1100s have been partially excavated and stabilized. Proclaimed Aztec Ruin National Monument Jan. 24, 1923; renamed Aztec Ruins National Monument July 2, 1928. Boundary changes: July 2, 1928; Dec. 19, 1930; May 27, 1948; Oct. 28, 1988; and

2. Chaco Culture National Historical Park, Nageezi, NM: The canyon contains 13 major prehistoric sites and hundreds of smaller ones, built by the Ancestral Puebloan people. Proclaimed Chaco Canyon National Monument March 11, 1907. Congress enacted legislation in 1980 to add 12,500 acres to the monument and changing its name to Chaco Culture National Historical Park. (16 U.S.C. § 410ii-1(a)). ⁶Information source NPS: https://www.nps.gov/aboutus/upload/NPIndex2012-2016.pdf.

Given these substantial statutory protections provided to the resources and values of Chaco Culture National Historical Park and Aztec Ruins National Monument under the NPS Organic Act, we believe protection of park resources merits special consideration by BLM; and potential impacts to them should be clearly and specifically analyzed within the Draft RMPA/EIS.

E. Convention Concerning the Protection of the World Cultural and Natural Heritage

The United States is a party to the Convention Concerning the Protection of the World Cultural and Natural Heritage (the “World Heritage Convention”), adopted in 1972. As a State Party, it has unique responsibilities to protect the 24 World Heritage Sites within its jurisdiction, including the Greater Chaco landscape.

Dubbed “Chaco Culture,” elements of the landscape in the Planning and Decision Area were inscribed as a World Heritage Site (WHS) on November 12, 1987. These resources are determined to be of Outstanding Universal Value under Convention criterion iii (“bearing a unique or at least exceptional testimony to a cultural tradition or to a civilization which is living or which has disappeared.”)

Chaco Culture is one of just 11 of World Heritage Sites in the United States specifically inscribed for its connections to cultural history, together with places as diverse and significant as Independence Hall and the Statue of Liberty. Chaco Culture WHS includes Chaco Culture National Historical Park (“CCNHP”), and Aztec Ruins National Monument, managed by the National Park Service, as well as several Archaeological Protection Sites (“Outliers”, identified in the 1995 Chacoan Outliers Protection Act (PL 104-11), some of which are actively managed by BLM as Areas of Critical Environmental Concern (ACECs), while others recognized for different degrees of protection by alternative in the RMPA. The Outliers are a part of a Chacoan network recognized as a component of the World Heritage Site, including road communities with great houses. Together these features compose a broad cultural landscape where no one part can be removed from the whole. In addition, since the 1995 Congressional Act recognizing 39 Outliers, significant new information has come to light about other Chacoan settlements in the region that are worthy of protection as candidate Outliers. ⁷See http://www.chacoarchive.org/cra/outlier-database/.

II. PUBLIC PARTICIPATION DURING THE DRAFT RMPA/EIS COMMENT PERIOD

Given the ongoing public health crisis because of COVID-19, we were glad to see the multitude of requests for an extension to the ongoing comment period acknowledged by DOI with Secretary Bernhardt’s decision to extend the comment period by an additional 120 days. This decision is consistent with requests from Tribal leaders, the Secretary of the New Mexico Department of Energy, Minerals, and Natural Resources, and New Mexico’s entire congressional delegation. This decision is also consistent with the public participation requirements under NEPA and FLPMA.

While the 120-day extension was welcome and necessary, we stand in solidarity with members of the Navajo Nation, the individual Pueblo Tribes, and the New Mexico Congressional Delegation’s requests to suspend the amendment process while the pandemic is ongoing. ⁸See All Pueblo Council of Governors Request Further Extension and Reassessment of Deadlines ono DOI’s Plan for Greater Chaco Region. August 28, 2020. Available at: https://www.apcg.org/uncategorized/all- pueblo-council-of-governors-request-further-extension-and-reassessment-of-deadlines-on-dois-plan-for- greater-chaco-region/; See also Chamberlain, Kendra. “BIA: Navajo members can ‘work around’ connectivity issues to participate in online forum on oil and gas development.” The NM Political Report. August 27, 2020. Available at: https://nmpoliticalreport.com/2020/08/27/bia-navajo-members-can-work-around- connectivity-issues-to-participate-in-online-forum-on-oil-and-gas-development/; see also Senators Udall and Heinrich and Representatives Haaland and Lujan’s letter to Secretary Bernhardt, calling for a suspension of the Farmington RMPA and onsite inspections for applications for permit to drill while the pandemic is ongoing. Dated August 26, 2020. Available at: https://www.tomudall.senate.gov/imo/media/doc/2020_08_26%20Bernhardt%20Farmington%20District %20and%20Pandemic.pdf.

Members of the Navajo Nation and the Pueblo Tribes are among the hardest hit by the pandemic, and many Tribal leaders have closed down non-essential government operations. Virtual meetings do not constitute meaningful tribal consultation and fall short of the Trump administration’s trust and treaty obligations to Tribes, as members of the Navajo Nation and the Pueblos have repeatedly expressed.

As the All Pueblo Council of Governor’s stated in their August 28, 2020 press release:

Since DOI granted its limited extension, the situation on the ground has remained dire. San Juan County and McKinley County have had some of the highest rates of COVID-19 in the State of New Mexico and in the country. The Pueblos and the Navajo Nation have also had significant COVID-19 cases — threatening the very lives of community members, including elders. Elders often play a critical role in advising tribal governments on cultural resource issues, a significant area of evaluation under the draft RMPA and EIS. ⁹Available at: https://www.apcg.org/uncategorized/all-pueblo-council-of-governors-request-further- extension-and-reassessment-of-deadlines-on-dois-plan-for-greater-chaco-region/.

BLM’s virtual meetings were not sufficient for meaningful public participation, particularly for Tribal governments and Native communities who disproportionately lack internet connectivity and cell service and are disproportionately impacted by the ongoing pandemic. As such, we call on BLM to suspend the RMPA planning process until the COVID-19 public health emergency ends.

III. GREATER CHACO LANDSCAPE

The Greater Chaco Landscape is one of the most significant cultural landscapes in North America. The canyon itself is a national historical park administered by NPS as a unit of the National Park System. The park is also a core component of the Chaco Culture WHS. In fact, Chaco Culture is the only WHS overseen by BLM, which has jurisdiction over Casamero, Halfway House, Kin Nizhoni, Pierre’s Site, and Twin Angels. Following its original designation, the United Nations Education, Scientific and Cultural Organization (UNESCO) expanded the Chaco Culture WHS, which had previously been limited to the canyon proper, to include these sites and to recognize the geographic breadth of the cultural phenomenon that arose within the canyon and shaped lifeways throughout the Four Corners region for several centuries. As explained by NPS,

[t]he original nomination underwent an important modification that led to the inclusion of five associated Chaco Greathouse communities managed by the BLM and Aztec Ruins NM, another NPS unit. This unusual action (which followed the US Congressional passage of PL 96-550) was done to recognize that the Chacoan civilization and its remains are not confined to the concentrated area in Chaco Canyon proper.

The listing is remarkable in that UNESCO recognized and requested that the additional ‘outlying’ segments be included in the listing because they illustrate the vast extent of the Chaco World in the 10th through the 12th centuries. This complex landscape of emblematic monumental architecture is interconnected by a network of constructed road alignments, line-of-sight signaling stations, portions of which are protected within the five BLM Chaco communities.

Letter from Lawrence T. Turk, Superintendent, NPS, to Lindsay Eoff, Project Manager, BLM 3 (May 29, 2013).

Many modern-day pueblos and tribes maintain long-standing cultural affiliations to Chaco Canyon, as well as to specific locations within the surrounding landscape. This includes most, if not all, of the nineteen pueblos in New Mexico, which coordinate on matters of mutual interest through the All Pueblo Council of Governors (APCG). Over the past six years, APCG has grown increasingly concerned about the threat that oil and gas development poses to the Greater Chaco Landscape. In 2014, APCG passed the first of four resolutions on the Greater Chaco Landscape where it stated that

the issuance of oil and gas leases, drilling permits and approvals for oil and gas roads, pipelines and other types of oil and gas infrastructure in the landscape surrounding Chaco Canyon, which includes traditional cultural properties and sacred sites, . . . threatens irreparable degradation and impairment to that landscape and to the traditional cultural values and sacred sites present within that landscape.

Resolution No. APCG 2014-04. In 2015, APCG passed a second resolution which identified specific traditional cultural properties (TCPs) and/or sacred sites within the Greater Chaco Landscape, “including, but not limited to, the Great North Road, the West road, and Pierre’s Site.” Resolution No. APCG 2015-17. APCG reiterated these concerns in 2016 and 2017 resolutions, stating that

preserving the traditional cultural properties and sacred sites that exist in Chaco Canyon and in the Greater Chaco Region, including, but not limited to, the Great North Road, the West Road, and Pierre’s Site, along with protection of the night skies, soundscapes, view shed and sight-lines within and surrounding Chaco Canyon is essential to the culture and traditions of APCG members. . . .

Resolution No. APCG 2017-12; see also Resolution No. APCG 2016-17. APCG has also endorsed legislation introduced by New Mexico’s congressional delegation – the Chaco Cultural Heritage Area Protection Act of 2019 – which would withdraw federal lands and minerals from future oil and gas leasing within roughly ten miles of Chaco Culture NHP. S. 1079, 116th Cong. (2019); H.R. 2181, 116th Cong. (2019). The U.S. House of Representatives passed this bill in October 2019.

Yet, over the years, despite its transcendent cultural significance, the Greater Chaco Landscape has become increasingly industrialized. Long stretches of the Great North Road, a monumental feature that once physically linked Chaco Canyon to Salmon and Aztec Ruins forty miles to the north, have been “destroyed” by oil and gas development. Ruth Van Dyke at al., Chaco Landscapes: Data, Theory, and Management 16 (Feb. 25, 2016). Other sites, including Pierre’s, which is part of the world heritage designation, are now “industrial parks.” Only a remnant of the Greater Chaco Landscape – the lands located within ten or so miles of Chaco Culture NHP – remains mostly free from intensive oil and gas development.

Meanwhile, as oil and gas development has advanced steadily closer to Chaco Canyon, BLM has resisted calls from tribal leaders, other federal agencies, and professional archaeologists to systematically inventory sensitive locales within the Greater Chaco Landscape and perform ethnographic work with tribal communities. Consequently, there remains a “paucity” of information about the location and nature of TCPs and sacred sites in the Greater Chaco Landscape, in particular those associated with the pueblos. And BLM still does not have “a thorough analysis of the actual rate of change” in the condition of cultural resources, even though oil and gas development has unquestionably caused significant direct and indirect impacts on the Great North Road, Pierre’s Site, and other cultural features within the Greater Chaco Landscape.

The Draft EIS would compound these long-standing problems and further diminish the integrity of the Greater Chaco Landscape. As explained below, in light of serious deficiencies within the Draft EIS, BLM must prepare and release for public review a supplemental analysis that accounts for ongoing cultural resources investigations and ethnographic studies, as well as the recent economic downturn, which could have dramatic implications for reasonably foreseeable development in the Farmington Field Office, and includes additional alternatives that prioritize the restoration and long-term protection of the Greater Chaco Landscape.

A. BLM Has Not Complied with the NHPA.

The goal of the Section 106 process, as required by the NHPA and associated regulations, is to identify and avoid, minimize, or mitigate adverse effects on historic properties. The process has four basic steps: establish the undertaking, identify and evaluate historic properties potentially affected by the undertaking, assess effects to those historic properties, and resolve any adverse effects. Here, we do not offer commentary on the process of establishing the undertaking for this planning process; BLM and BIA both agree that the RMPA process is an undertaking that must be evaluated through the Section 106 process.

We address three the remaining three steps in order, below, in assessing the RMPA and EIS.

1. BLM has not adequately identified or evaluated historic properties in the Greater Chaco Landscape.

Federal agencies are required by Section 106 to identify and evaluate historic properties potentially affected by a proposed undertaking. 36 C.F.R. § 800.4. More fundamentally, however, Section 110(a) of the NHPA requires that all historic properties under the jurisdiction or control of a federal agency such as BLM must be “identified, evaluated, and nominated to the National Register,” 54
U.S.C. § 306102(b)(1). BLM has failed to comply with that responsibility.

General procedure in New Mexico at the RMPA and EIS level is for Agencies to compile data on previously identified cultural resources (through the State NMCRIS system and other sources), attempt to project the percentage of the decision area that has been surveyed, and defer most of their remaining identification and evaluation responsibilities to the leasing and APD levels.

This deferral of cultural resource identification and evaluation, while standard procedure, is not acceptable in this case. We address concerns with archaeologically detected resources below. Of greater concern is the lack of ethnographic data on Tribal cultural resources – “culturally important properties” (CIMPPs) in BLM’s terminology. As noted in Appendix H (pp. H-1):

During scoping, there were diverse comments received from Tribal communities and individuals on the potential impacts from oil and gas development and hydraulic fracturing. Some Tribal members, including individuals from Pueblos and the Navajo Nation, felt that oil and gas infrastructure growth was impacting cultural and natural resources, along with Tribal lifeways or CIMPPs. They indicated that agencies lack the ability to identify traditional resources or other sacred sites to which Tribes have long-standing affiliations, and as a result the ongoing fluid mineral development was destroying part of these Tribes’ cultural landscape. Tribal members also expressed their concerns about the broad effects from oil and gas development that result in an altered landscape where individuals are no longer able to complete early morning prayers, night observances, or other ceremonies due to the impaired visual and auditory setting.

Thus, the Agencies acknowledge that Tribal concerns have not been met and are on-going. Assessing the planning documents, we conclude that these concerns about proper identification and evaluation of cultural resources have not been addressed. BLM’s preferred alternative C does not recommend any specific action to address these concerns.

The specific lack of ethnographic data for the more than 2 million acre decision area has been brought to the Agencies attention at every public meeting since 2014 and in scoping comments. In response to these comments, BLM sought and acquired Federal funds for an ethnographic project. An award of $400,000 was made in Summer 2019 for this project, as reported at a public meeting. Through their contractor EMPSi, BLM initiated this project in the Fall of 2019 with an RFP requesting proposals from Tribes to complete ethnographic work in the decision area. This process has been complicated and Tribes have expressed concerns with the approach taken. With the covid- 19 crisis, the process came to a halt in February 2020, with no funds dispersed for Tribes.

As part of the December 2019 appropriation bill that kept the Federal government operating, $1 million in funding was appropriated to the BIA to distribute to Tribes for cultural and ethnographic studies of the Greater Chaco Landscape. This process was initiated in January 2020 and came to a halt with the virus pandemic.

In addition to these studies, Archaeology Southwest has recently completed a pilot project with Acoma Pueblo that explored Acoma’s connections to the ancestral landscape across Greater Chaco and identified unique Acoma TCPs. This report will be made public soon and will help the Agencies better manage cultural resources.

In addition to these studies, the Pueblo of Acoma, in cooperation with Archaeology Southwest, recently undertook a pilot project in specific areas of the Greater Chaco Landscape threatened by oil-gas development. See Acoma Greater Chaco Project (excerpt). Primary project goals involved exploring and understanding Acoma’s connections to the ancestral landscape across Greater Chaco and identifying areas that were at great risk because of ongoing oil-gas development. Numerous unique Acoma TCPs were identified during the project. Id. None of these resources had been identified previously through standard, archaeology-focused CRM projects. Because of this, it is clear that the Agencies are not completing the identification phase of the Section 106 process adequately. Among other recommendations, the Agencies should expedite Native Americans Tribal participation in the leasing and APD stages of oil-gas development. At a minimum, oil-gas companies should be required to complete cultural fieldwork with interested Tribes and Pueblos. The complete Acoma report will be made available soon.

Given that Tribes and other groups have called out the lack of ethnographic data for the Greater Chaco Landscape for years and given the Agencies’ acknowledgement that these studies are an important part of completing the Section 106 process (and complying with Section 110(a)), it is very difficult to understand why the agencies are rushing to complete the RMPA and EIS prior to the compilation of critical ethnographic data to be collected during the BLM and BIA projects.
Together, these projects total $1.4 million and will certainly have a vast impact on our understanding of use of the cultural landscapes across the decision area, as well as the potential for decisions under consideration in the RMPA to cause adverse effects on historic properties within those landscapes.

If the Agencies move forward with the RMPA and EIS documents without awaiting data from the ongoing ethnographic studies, they will fail to properly complete the identification and assessment component of Section 106 (and Section 110(a)), and will therefore violate the National Historic Preservation Act. None of the alternatives outlined in the RMPA and EIS allow for adequate identification and assessment of cultural resources.

The 10-mile protection zones in Greater Chaco Landscape that surround Chaco Culture National Historical Park contain roughly 4,200 known archaeological, cultural, and historic sites. The 2019 House bill (HR 2181) and pending Senate companion bill, known as the Chaco Cultural Heritage Area Protection Act, will offer permanent protection for these areas, once passed. The 4,200 sites speak to episodic use of the area by various cultural groups (Paleoindian, Archaic, Puebloan, Navajo, and others) from roughly 10,000 BCE into the present. Because less than 20 percent of the area enclosed by the 10-mile zones of protection has been surveyed, the actual site count is undoubtedly much higher than 4,200. In addition, very little recent ethnographic work has been undertaken with any Tribal groups, aside from the Pueblo of Acoma’s 2018 project with Archaeology Southwest. Given the dozens of TCPs revealed during Acoma’s pilot project, there are probably hundreds if not thousands of TCPs and other Tribal cultural sites that have not yet been identified across Greater Chaco. See Paul F. Reed, An Archaeological Reconnaissance of Chaco’s 10- Mile Zone of Protection (Sept. 2020).

At least 10 significant ancient Chacoan-Pueblo communities are known to lie within and just beyond the 10-mile zone around Chaco Culture NHP. These include the Bis san’ni Community, located a few miles northeast of Chetro Ketl and the Pierre’s Community, located up the Great North Road, at about the edge of the 10-mile protection zone. A linear community lies along the Ah-Shi- Sle-Pah road that originates at Penasco Blanco and trends to the northwest for more than 25 kilometers (19 miles). Most of this ancient community lies within the 10-mile protection zone. Additional Chacoan communities within the 10-mile zone include Casa del Rio, Bee Burrow, Kin Indian-Escavada-Greasy Hill, Greenlee, Indian Creek, Mesa Tierra, and Tse Lichii’. As documented in the bullets below, these are significant sites the characteristics and condition of which BLM has an obligation to fully document during this RMPA process:

• The ancient Pueblo community at Bis san’ni comprises at least 30 sites in a roughly 4 km- square or roughly 1000-acre area. The community lies about 5 miles northeast of Pueblo Bonito. The core of the site is a Chaco great house with about 40 rooms and 5 kivas. Pueblo sites in the community around Bis san’ni contain about 50 rooms and several kivas. In addition, the community contains resource procurement sites and other sites of limited use.
• The Pierre’s site complex is the largest community on Chaco’s Great North Road. Pierre’s contains three small Chacoan great houses with perhaps 50 total rooms, single and second- story, and several kivas. The community also incorporates a watchtower-like feature called El Faro (the lighthouse). In the community around Pierre’s core, at least 60 rooms are present at 10 small pueblo habitation or field house sites. Additional sites include artifact scatters, the Great North Road, and rock features. Additional discussion of Pierre’s is provided below.
• Mesa Tierra is a Chacoan great house with 30 rooms and 5 kivas located southwest of Pueblo Bonito. The site was built on a mesatop and includes a small community of surrounding sites with perhaps 20 additional rooms.
• Casa del Rio lies along Chaco’s West Road and comprises a great house with perhaps 140 rooms and several large, dense midden areas. An ancient reservoir lies south of the great house. The community around Casa del Rio is largely unknown, due to the lack of archaeological survey.
• Greenlee lies southeast of the Chaco park boundary and consists of a Chacoan great house with 15 rooms and one kiva. It sits on a low mesatop. A Chacoan road segment run to the east of the site. A probable community of small sites surrounds Greenlee but its nature is unclear due to limited archaeological investigation.
• Bee Burrow is a small Chacoan great house with 11 rooms and 2 kivas located south of Pueblo Bonito and the Park boundary. Chaco’s South Road passes by the site to the east. Petroglyphs are present along a cliff face southwest of the great house. The community surrounding Bee Burrow is poorly understood but contains dozens of small pueblo sites and perhaps 500 total rooms.
• The Indian Creek community lies west of Chaco and includes two small Chacoan great houses – Casa Cielo and Casa Abajo – and a community of 20 small pueblo sites with over 100 rooms.

Archaeology Southwest’s recent work in the 10-mile zone has revealed additional site clusters and communities that merit protection. Paul F. Reed, An Archaeological Reconnaissance of Chaco’s 10- Mile Zone of Protection (Sept. 2020). A primary objective involved looking at the Greater Chaco Landscape at a different scale than is pursued by the Agencies. Typically, Federal Agencies in the West treat cultural sites as single phenomena during the Section 106 process. Thus, archaeological contractors identify sites or TCPs during projects and the projects are redesigned, in most cases, to avoid the resources by 50-100 feet. In more rare cases, such as road alignments, the decision is made to conduct test excavations to mitigate effects on the cultural resources. This avoidance policy has spared many cultural resources from outright destruction but has resulted in a highly fragmented cultural landscape across many places of the American West, and in particular, across the Greater Chaco Landscape. As a result, many indirect and cumulative effects have built up across Greater Chaco, as the ancient Chacoan-Puebloan landscape has been slowly but persistently in-filled by the industrial infrastructure of the oil-gas industry.

A better perspective looks at cultural sites not in isolation but as pieces of larger communities on the landscape. This community- or landscape-based approach has been part of archaeological research for nearly 25 years but has not appeared in the Agencies’ playbook. Although the BLM lands in Greater Chaco are currently leased at more than 90%, this landscape-level approach can be implemented to protect communities and site clusters that have not yet seen impacts, like those seen at the Pierre’s Community. See Ruth M. Van Dyke, Impacts of Oil and Gas Drilling on Viewscapes and Soundscapes at the Chaco Outlier of Pierre’s, San Juan County, New Mexico (Feb. 16, 2017). The identification of site clusters and communities during the study, in addition to the other communities discussed above make clear that the 10-mile protection zone contains abundant sites, communities, and poorly understood site clusters that require special protection by the BLM and BIA. However, the Agencies’ preferred Alternative C offers no protection of any of these sites, site clusters, or communities. Alternative B-1 would offer some protection for this community and all cultural sites on BLM lands in a 10-mile zone around Chaco.

To add to what Van Dyke’s study has revealed and what prior BLM GIS-based analysis also showed, Reed compiled a map of the Pierre’s Community and then overlaid the current BLM area of critical environmental concern (ACEC) that was put in place years ago in an effort to protect the community and keep oil-gas development away. Again, as Van Dyke has clearly illustrated, the number and density of oil-gas well pads and other facilities has compromised the viewshed and soundscape around the Pierre’s Community. This study and the mapping exercise amplify this message, with at least 160 sites of varying ages (primarily Chacoan with some Archaic, Early Navajo, and Historic Navajo manifestations). BLM’s ACECs in the area were designed to protect Pierre’s and two sections of the Great North Road. However, the ACECs cut through the middle of the community protecting some sites but do not offer any protection for outlying sites that are part of the ancient and historic community. The Pierre’s Community is recognized as part of the Chaco’s World Heritage designation but beyond BLM’s small ACECs, this amazing place has no special protection from oil-gas or other development.

Other examples of site clusters and communities are detailed in Reed’s 2020 report on the 10-mile zone. The studied group of ancient and historic communities and site clusters is just a sample of those that lie within the 10-mile protection zones. Along with the 10 previously documented and described Chacoan communities, they clearly illustrate the high density of cultural and historic sites in this area directly adjacent to Chaco Park. These findings again reinforce our understanding that the 10-mile zone of protection is not an arbitrary boundary. The 10-mile zone contains irreplaceable ancient and historic sites and communities that merit much more protection than BLM and BIA policy and regulations currently provide.

None of these communities will be adequately protected if the 10-mile zone is reduced to 0, 2, or 4 miles. Further, BLM lacks adequate ethnographic information about the importance of these sites to modern-day pueblos and tribes — information that the ongoing ethnographic and cultural resources investigations referenced above will likely provide. The effort continues beyond this planning process deadline. Ultimately, Archaeology Southwest will submit a proposal to BLM to create additional zones of protection, either ACECs or another designation, around cultural-historic communities and site clusters across Greater Chaco.

2. BLM has not adequately assessed potential adverse effects on historic properties.

The next step in the Section 106 process is assessment of adverse effects to historic properties. 36 C.F.R. § 800.5. Following the discussion above on identification and assessment of Tribal and ethnographically identified cultural resources, the assessment of effects remains fundamentally inadequate and incomplete, as the full extent of cultural resources is not even known yet. Given that none of the alternatives outlined in the RMPA and EIS allow for adequate identification and assessment of cultural resources, there is no way to complete a full assessment of effects to historic properties.

3. BLM has not fulfilled its responsibility to resolve adverse effects on historic properties in the Greater Chaco Landscape.

The final step outlined by the Section 106 process is resolving adverse effects. 36 C.F.R. § 800.6. This step must await full identification of cultural resources. The current dataset for the decision area, as discussed above, is woefully inadequate, thus precluding any assessment or resolution of adverse effects to historic properties and CIMPPs.

Once that identification information is available, however, BLM’s “resolution” of adverse effects must be shaped by its stewardship responsibilities under Section 110(a)[BM1] of the NHPA, which requires that all historic properties under the jurisdiction or control of a federal agency must be “managed and maintained in a way that considers the preservation of their historic, archeological, architectural, and cultural values in compliance with section [106] and gives special consideration to the preservation of those values in the case of property designated as having national significance,” (as is clearly the case here). 54 U.S.C. § 306102(b)(1)-(2) (emphasis added). BLM has failed to comply with this responsibility.

B. BLM Has Not Complied with NEPA.

1. The Draft EIS lacks essential baseline information about the Greater Chaco Landscape.

The Draft EIS lacks required information about the location, condition, and significance of cultural resources in the Greater Chaco Landscape. BLM must obtain and evaluate this information to fulfill its obligations under NEPA. Without adequate baseline information about the Greater Chaco Landscape, BLM simply cannot fulfill the “hard look” requirement of NEPA or make an informed choice from among the management alternatives proposed in the Draft EIS. N. Plains Res. Council, 668 F.3d at 1085; Or. Natural Desert Ass’n, 840 F.3d at 571.

a. The Draft EIS does not provide adequate baseline information about the impacts of past and ongoing oil and gas development on cultural resources in the Greater Chaco Landscape.

The Draft EIS does not adequately characterize the extent to which prior and ongoing oil and gas development has directly, indirectly, and cumulatively affected cultural resources in the Greater Chaco Landscape. BLM seems to agree in the Draft EIS, stating that “no agency has done a thorough analysis of the actual rate of change [in the condition of cultural resources].” Draft EIS at 3-119. This is a glaring deficiency, given the undisputed significance of the Greater Chaco Landscape and the extent to which it has been adversely affected by past and ongoing oil and gas development.

Over the years, other federal agencies, tribes, and archaeological experts have repeatedly raised concerns with BLM about the need for better baseline information on the location, significance, and condition of cultural resources in the Greater Chaco Landscape. For example, NPS, which manages Chaco Culture NHP and shares jurisdiction with BLM over the Chaco Culture WHS, has stated that “[e]nergy exploration and extraction, specifically oil and gas production currently threatens viewshed and the assocciated [sic] cultural landscape.” NPS, Periodic World Heritage Report –Second Cycle 4 (2016); see also NPS, Periodic World Heritage Report 21 (2005) (“The park has identified energy development as the greatest external threat to park resources.”). In regard to recent oil and gas leasing proposals within the Greater Chaco Landscape, NPS has stated that:

[t]he recent proposed lease sale of 36 BLM parcels for oil and gas development near Chaco Culture National Historical Park and World Heritage Site has drawn considerable concern from park management and other stakeholders. Though that sale has been postponed to January 2014, we believe this scale of development has the potential for significant adverse effects on park viewsheds and related values. The CCNHP viewshed contains numerous ancient road alignments, including portions of the Great North Road, and others that extend to the northeast and northwest. Should these lease sales go forward, park visitors will see construction and use of new oil and gas roads, interfering with their views of the ancient roads. Visitors will see oil and gas wells, new electric transmission lines, and heavy transport, construction, and ongoing well production traffic, all of which would cumulatively affect the context, setting, and historical integrity of the park.

Letter from Lawrence T. Turk, Superintendent, NPS, to Lindsay Eoff, Project Manager, BLM 4 (May 29, 2013) (emphases added); see also id. at 7 (“. . . Chaco’s specific World Heritage values of sweeping, unimpaired views, clean air, and no intrusions of man-made noise or light would be affected by a high level of development near the World Heritage sites.”). Accordingly, NPS has supported efforts to document the condition of cultural resources in the Greater Chaco Landscape, in particular the Great North Road: “As there has been more activity in this area – from oil and gas development, road construction, and increasing settlement – we have not been in a position to determine with any certainty whether any of these activities have affected the road alignment or its resources.” Letter from Barbara J. West, NPS, to Anna Sofaer, The Solstice Project 1 (Jan. 29, 2010).

Similarly, the Advisory Council on Historic Preservation (ACHP) – the independent federal agency established to “advise the President and Congress on matters relating to historic preservation,” 54 U.S.C. § 304102(a)(1) – has concluded that “[p]roposed energy development in the vicinity of Chaco Canyon has the potential to impair and degrade sites of both national and international significance, including the Chaco Culture National Historical Park, administered by the National Park Service, and the surrounding network of archaeological sites administered by the Bureau of Land Management and others.” Letter from Milford Wayne Donaldson, Chairman, ACHP, to David Bernhardt, Secretary, Department of the Interior 1 (Mar. 11, 2019). “ACHP believes that it is incumbent upon the BLM to not only take the full range of Chacoan sites into account . . . , but to also protect them from all future visual impacts to the maximum extent possible.” Letter from Reid J. Nelson, Director, Office of Federal Agency Programs, ACHP, to Lindsay Eoff, Project Manager, BLM, at 2 (May 31, 2013). To protect Chacoan sites “from all future visual impacts to the maximum extent possible,” as recommended by ACHP, BLM must first document the current condition of those sites.

Echoing the concerns of NPS and ACHP, numerous tribes have called for additional survey and ethnographic work in advance of further development in the Greater Chaco Landscape. For example, in February 2019, APCG formally protested several proposed oil and gas leases within the Greater Chaco Landscape, asserting that

there exists a “paucity” of information pertaining to the 20 Pueblos’ respective historic properties and traditional cultural properties in this area of the proposed March 2019 Lease Sales. This should give rise to the BLM to conduct more intensive efforts, such as sample field investigations or field surveys, including Class III surveys with the collaboration or contribution by qualified experts able to identify the 20 Pueblos’ cultural resources.

Letter from E. Paul Torres, Chairman, APCG, to State Director, BLM, at 13 (Feb. 20, 2019). Other tribes, including the Hopi Tribe, have made identical requests over the years. See, e.g., Letter from Leigh J. Kuwanwisiwma, Director, Hopi Cultural Preservation Office, to Steve Henke, District Manager, BLM 1 (Mar. 8, 2010) (requesting “an on the ground assessment” prior to oil and gas leasing in the vicinity of Chaco Culture NHP).

Finally, professional archaeologists, many of whom are recognized experts on the Greater Chaco Landscape, have warned BLM against authorizing further development without first taking steps to document the condition of cultural resources in the Greater Chaco Landscape. For example, a white paper issued by Ruth Van Dyke, Stephen Lekson, and Carrie Heitman in 2016 stressed that

BLM failed to obtain sorely needed information about properties of cultural or religious significance to tribes, including TCPs and sacred sites. During the NEPA process, BLM has an obligation to identify and evaluate potential impacts on TCPs and sacred sites. See Pueblo of Sandia, 50 F.3d at 859 (recognizing TCPs as historic properties under Section 106); National Park Service, National Register Bulletin 38: Guidelines for Evaluating and Documenting Traditional Cultural Properties (same). Yet, in the Draft EIS, BLM suggests that certain TCPs and sacred sites in the planning area “may not qualify as historic properties” and are owed no protection under the NHPA. Draft EIS at 3-120. It is not clear what the legal basis for this opinion is or which sacred sites and TCPs in the planning “may not qualify.” Regardless, TCPs are historic properties under the NHPA and must be treated and managed as such.

Further, in the past, BLM has expressed a bias for TCPs and sacred sites of the Navajo Nation, rather than TCPs and other sites with cultural significance to the pueblos. In the 2003 Farmington Field Office RMP, BLM identified 73 TCPs, most or all of which in conjunction with the Navajo Nation. BLM, Farmington RMP and Record of Decision 9 (Dec. 2003). BLM agreed to “work cooperatively with the Navajo Nation [but, apparently, none of the pueblos or any other tribe] to ensure that any other areas of interest are identified so site-specific consultations can be targeted.” Id. BLM downplayed the pueblos’ long-standing ties to the Greater Chaco Landscape, stating that these “connections with the Zuni, Hopi, and Rio Grande pueblos are earlier and less well understood.” Id. at C-65. And only recently, beginning in approximately 2009, did BLM begin to notify the pueblos about proposed oil and gas leases in the vicinity of Chaco Culture NHP. Letter from Steve Henke, District Manager, BLM, to Ti Hays, National Trust for Historic Preservation, at 2 (Nov. 4, 2009).

It is not clear that BLM has overcome this bias in the Draft EIS and taken steps to rigorously inventory the Greater Chaco Landscape for TCPs and sacred sites, in consultation with the pueblos. BLM alludes to “nearly 500 TCPs in the BLM-managed portion of the planning area that are significant to Tribe for various reasons. . . .” Draft EIS at AE-122. However, the Draft EIS does not indicate whether those TCPs were identified through consultation with tribal communities outside of the Navajo Nation. It is essential that BLM do so during this planning process and prior to arriving at a final decision on the RMPA. Over the past few years, APCG and other tribal governments have identified specific locations within the Greater Chaco Landscape, “including, but not limited to, the Great North Road, the West road, and Pierre’s Site,” as TCPs. Resolution No. APCG 2015-17; see also Letter from Leigh J. Kuwanwisiwma, Director, Hopi Cultural Preservation Office, to Gary Torres, Field Manager, BLM 1 (Mar. 7, 2014) (identifying Chaco Culture NHP as “a Traditional Cultural Property of the Hopi Tribe,” along with other “archaeological sites of our ancestors”). BLM must work to document and account for those sites, along with other TCPs and sacred sites that surely exist in the planning area.

The Pueblo of Acoma’s recent, limited ethnographic study (with Archaeology Southwest) reveals the wealth of data that will be made available when the required ethnographic-cultural studies are completed. With just a week of fieldwork, the Acoma team identified dozens of TCPs and other cultural sites that were previously unknown. See Acoma Greater Chaco Project (excerpt). These findings again underscore the serious deficiencies in both the extant Agency datasets with regards to TCPs from Tribes other than the Navajo Nation and the inadequacy of the current approach to Section 106 fieldwork. The Acoma Projects reveals that the archaeology-focused approach is simply failing to identify many TCPs and cultural sites on the landscape. Thus, the Agencies are not fulfilling their obligations under both the NHPA and NEPA.

BLM must heed the lessons of Pueblo of Sandia. There, the U.S. Forest Service knew in advance of initiating consultation that a pueblo had identified a specific location as “an area of great religious and traditional importance. . . .” Pueblo of Sandia, 50 F.3d at 860 (internal quotations omitted). Further, the pueblo had, in the past, asked the U.S. Forest Service to manage the area in a manner “it believed would be most likely to permit Sandia members to perform secret, traditional activities in more seclusion.” Id. (internal quotations omitted). BLM now finds itself in the same position. APCG and other tribal governments have identified specific TCPs within the Greater Chaco Landscape and have also indicated that others exist. Accordingly, BLM must now engage the pueblos in good faith consultation concerning the identification and evaluation of TCPs, including, but not limited to, the Great North Road.

2. BLM has not taken a “hard look” at the impacts of oil and gas leasing and development on the Greater Chaco Landscape.

BLM has failed to take a “hard look” at the direct, indirect, and cumulative impacts of past, present, and future oil and gas development on the Greater Chaco Landscape. BLM has neither made a “reasoned evaluation of available information” nor done “a careful job at fact gathering and otherwise supporting its position.” Biodiversity Conservation All., 762 F.3d at 1086. Accordingly, BLM must conduct a more rigorous analysis of potential impacts on the Greater Chaco Landscape, based on adequate baseline information about the current condition of cultural resources in the area.

a. BLM has not satisfactorily evaluated the direct and indirect impacts of oil and gas development on the Greater Chaco Landscape.

BLM has not taken a “hard look” at the direct and indirect impacts of the proposed alternatives on Chacoan roads and outliers, TCPs and sacred sites, and other significant cultural features in the Greater Chaco Landscape. This failure is a direct outgrowth of the inadequate baseline information presented in the Draft EIS. Since BLM has not “done a thorough analysis of the actual rate of change” for cultural resources in the Greater Chaco Landscape, then it’s impossible for the agency to make a “reasoned evaluation” of potential impacts on those resources from future leasing and development. Draft EIS at 3-119.

It is well-documented that prior and ongoing oil and gas development has directly and indirectly affected cultural resources in the Greater Chaco Landscape. See, e.g., Letter from Milford Wayne Donaldson, Chairman, ACHP, to David Bernhardt, Secretary of the Interior 1 (June 10, 2019) (“The effects of continued development stand not only to directly impact historic properties; they may also impair the traditions and tribal way of life that has endured for centuries if not carried out with an understanding of these important connections.”). “Direct” impacts include the construction and use of oil and gas access roads and pipelines that transect or occupy Chacoan roads. See, e.g., Letter from David J. Mankiewicz, Assistant Facility Manager, BLM, to Leigh J. Kuwanwisiwma, Director, Hopi Cultural Preservation Office 2 (Dec. 23, 2009) (discussing “significant” access issues with proposed oil and gas leases that could “intrude” upon the Great North Road); Van Dyke et al. at 50 (“Sadly, energy development in the 20th century has destroyed virtually any traces of the North Road between Kutz Canyon and Aztec.”).

This also includes auditory and visual impacts on cultural resources in the Greater Chaco Landscape. Significant sites, such as Pierre’s and segments of the Great North Road, are now surrounded by oil and gas pumpjacks, tanks, and periodic drill rigs. Portions of the Greater Chaco Landscape are now “an industrial park” where “there have been significant impacts to the viewscape and the soundscape.” Ruth Van Dyke at al., Chaco Landscapes: Data, Theory, and Management 14 (Feb. 25, 2016). Further, in the past, BLM has determined that lease parcels “nearly 20 miles away from [Chaco Culture NHP]” are visible from key observation points within the park. BLM, January 2014 Competitive Oil and Gas Lease Sale EA 28.

Yet, the Draft EIS discusses these types of impacts categorically and in inadequately general terms:

Any future activities that would disturb the surface could have direct and indirect impacts on historic properties or CIMPPs. Examples of these are damaging, destroying, or displacing artifacts and features and constructing infrastructure out of character with setting, feeling or association. Damaging, displacing, or destroying historic properties could include obliterating artifacts, breaking or removing them from their context, or excavating features without appropriate scientific recording. Additionally, future activities that disturb the surface could have an impact on the physical integrity of these resources.

Indirect impacts on historic properties or CIMPPs could include those that change the character of a property’s use or physical features in its setting, feeling, or association that contribute to its historic integrity; an example of this is isolating the property from its setting

Draft EIS at EC-42. These are the very sort of “[g]eneral statements about ‘possible’ effects and ‘some risk’ [that] do not constitute a ‘hard look’” under NEPA. Neighbors of Cuddy Mt. v. United States Forest Serv., 137 F.3d 1372, 1380 (9th Cir. 1998). Instead, BLM must obtain additional baseline information about the current condition of significant cultural resources in the Greater Chaco Landscape. Once it has done so, then it must provide a detailed, “reasonable evaluation” of potential direct and indirect impacts from future oil and gas development, as required by NEPA.

Notably, the landscape immediately north of Chaco Culture NHP has not experienced the same level of oil and gas development as surrounding areas. The Great North Road runs through this landscape, which also serves as the viewshed for several mesa-top sites within Chaco Culture NHP, including Pueblo Alto and New Alto. According to NPS,

the ancient road alignments were first discovered in this area north of the park because the terrain is relatively intact with limited modern intrusions. This landscape is not pristine or untrammeled, but it is largely intact and the fact the ancient features are still visible and detectable suggests that the level of integrity is high. Each additional modern feature, ground disturbance, or terrain modification obscures or outright obliterates these features.

Letter from Lawrence T. Turk, Superintendent, NPS, to Lindsay Eoff, Project Manager, BLM 3 (May 29, 2013). Thus, it is particularly important that BLM take a “hard look” at potential impacts in this sensitive area immediately north of Chaco Culture NHP, which it has failed to do in the Draft EIS.

b. BLM has not evaluated the cumulative impacts of oil and gas development on the Greater Chaco Landscape.

BLM has not adequately evaluated the cumulative impacts of past, present, and future oil and gas development on cultural resources in the Greater Chaco Landscape. In order to satisfy this requirement, BLM must account for “reasonably foreseeable” projects. 40 C.F.R. § 1508.7; Wildearth Guardians v. United States BLM, 2020 U.S. Dist. LEXIS 77409, at *25-26 (D. Mont. May 1, 2020); Dine Citizens Against Ruining Our Env’t v. Bernhardt, 923 F.3d 831, 853 (10th Cir. 2019).

As noted above, BLM has not evaluated and disclosed the cumulative impacts of past and present oil and gas development on significant cultural resources in the Greater Chaco Landscape. For example, as documented in a recent study at Pierre’s Site, there are[n]o less than 12 pumpjacks and at least 5 drilling containers are visible from the high places in the community. Pumpjacks . . . are prominently visible on the skyline from Houses A and B as well as the pinnacle sites. Noise from the nearest pumpjack . . . , located approximately 600 m southwest of Pierre’s butte, is audible from throughout the community Looking south towards Chaco Canyon, numerous pumpjacks dot the valley floor.

c. BLM has not evaluated the potential impacts of proposed waivers, exceptions, and modifications to no-surface occupancy stipulations.

BLM has a documented history of waiving and relaxing lease stipulations that are adopted to protect cultural and natural resources from the impacts of oil and gas development. Yet, the Draft EIS does not envision or evaluate the impacts of this foreseeable scenario. As a consequence, BLM has not taken the required “hard look” at the impacts of failing to enforce no-surface occupancy (NSO) stipulations on the Greater Chaco Landscape.

In the Draft EIS, BLM leans heavily on NSO stipulations as a mechanism to avoid or minimize the impacts of development on cultural resources in the Greater Chaco Landscape. For example, under the preferred alternative, NSO stipulations would apply to between 133,900 and 295,800 acres of federal lands and minerals. Draft EIS at 2-33-34. Many of these stipulations are proposed specifically to protect Chaco Culture NHP, Chacoan roads and outliers, and other significant cultural features in the Greater Chaco Landscape from the impacts of drilling. Id. Yet, BLM is proposing to permit waivers and/or exceptions to most, if not all, of these NSO stipulations. Id. at D-5 to D-23. These waivers and exceptions would undermine the protections afforded by the NSO stipulations, as well as the impacts analysis within the Draft EIS. See, e.g., id. at 3-123 (“As compared with the BLM No Action Alternative, these fluid mineral leasing closures or stipulations under BLM Alternative A (particularly the NSO stipulations) would result in less potential for physical impacts on historic properties and CIMPPs, and they would reduce the potential visual, auditory, and vibratory impacts that could diminish aspects of historical integrity, such as setting or feeling.”).

BLM’s practice of authorizing waivers and exceptions to oil and gas lease stipulations is well- documented. In 2017, the Government Accountability Office (GAO) issued a report on BLM’s ability to “assess and mitigate environmental impacts” from oil and gas development. GAO, Improved Collection and Use of Data Could Enhance BLM’s Ability to Assess and Mitigate Environmental Impacts (Apr. 2017). As part of this report, GAO examined BLM’s methods for evaluating and authorizing “waivers, exceptions, and modifications” to oil and gas lease stipulations and permit requirements. GAO, which relied on information from six field offices, including Farmington, found that waivers and exceptions are being granted, although to what extent is unknown because “BLM does not require that its field offices make the results of exception decisions available to the public.” Id. at 21. Further, “BLM officials stated that they have generally not involved the public when considering operator requests for exceptions to lease and permit requirements.” Id. at 20. As GAO concluded, “[w]ithout access to information on how often exception requests are made and approved and the reasons for the decisions, the public may not have the information necessary to provide substantive input into BLM’s land use planning process.” Id. at 21.

Yet, this is the very information that BLM has failed to provide in the Draft EIS. There is no information on the extent to which BLM has approved waivers, exceptions, and modifications in the Farmington Field Office in the past or its process for doing so. Nor did BLM recognize or attempt to forecast, based on past practice, whether companies are likely to seek waivers or exceptions in the future and what resources are most likely to be affected (e.g., cultural, wildlife, water, air). For example, BLM did not discuss whether companies are seeking and obtaining waivers and exceptions primarily for wildlife timing limitations or whether other kinds of stipulations are involved. Moreover, BLM did not identify where it has authorized waivers and exceptions in the past and whether those are concentrated in one place or another. In short, BLM provided none of the information that would allow the agency and the public to take a hard look at the impacts and utility of the waivers and exceptions proposed in the Draft EIS.

Additionally, as typically implemented by BLM, NSO stipulations are clearly not as effective at protecting priceless cultural resources as a no-leasing designation. As described in Appendix D, Section D.1.2:

NSO areas are open to fluid mineral leasing, but surface occupancy or surface- disturbing activities associated with fluid mineral leasing cannot be conducted on the surface of the land. Access to leased fluid mineral deposits would require directional or horizontal drilling or drilling from outside the boundaries of the NSO area. This differs from areas identified as closed to leasing (NL) in which neither the surface area nor mineral estate is available for fluid mineral leasing. (emphasis added)

Current generation horizontal drilling techniques can reach lengths of over 3 miles (18,000+ feet) for lateral wells. (See Journal of Petroleum Technology, 08 August 2018, Drilling for Miles in the Marcellus; Laterals Reach New Lengths). Environmental issues that are specifically related to hydraulic fracturing include: water availability; spills of chemicals at the surface; impacts of sand mining for use in the hydraulic fracturing process; surface water quality degradation from waste fluid disposal; groundwater quality degradation; and induced seismicity from the injection of waste fluids into deep disposal wells. ¹⁰See https://www.usgs.gov/faqs/what-environmental-issues-are-associated-hydraulic-fracturing?qt- news_science_products=0#qt-news_science_products. In other words, horizontal drilling and hydraulic fracturing are not impact-free and an NSO is not as effective at protecting nearby cultural sites as an NL s designation.

3. The Draft EIS lacks a reasonable range of alternatives.

The Draft EIS lacks a reasonable range of alternatives for managing and addressing the impacts of oil and gas development within the Greater Chaco Landscape. Importantly, the adequacy of an EIS’s range of alternatives is governed by a qualitative, not quantitative, standard. Prairie Band Pottawatomie Nation v. Federal Housing Auth., 684 F.3d 1002, 1012 (10th Cir. 2012). The sole inquiry is whether the range of alternative is “reasonable,” as measured against an agency’s statutory mandate and goals for a project. N.M. ex rel. Richardson, 565 F.3d at 708-09. Thus, the fact that the Draft EIS includes eleven alternatives/sub-alternatives, including eight with tailored management for the Greater Chaco Landscape, is irrelevant. When judged against the “reasonableness” standard, the Draft EIS’s range of alternatives is inadequate.

However, we do want to recognize that BLM, and in particular its field staff, have begun to address the long-standing concerns of tribes, NPS, ACHP, and many others for oil and gas development in the Greater Chaco Landscape. It is evident that BLM has tried to respond to those concerns by crafting alternatives that would, to some extent, limit future oil and gas development in the Greater Chaco Landscape. The fact that BLM is considering these alternatives at all, given the historic focus on intensive oil and gas development in northwestern New Mexico, is commendable. Nevertheless, the Draft EIS fails to evaluate a reasonable range of options for managing and protecting cultural resources in the Greater Chaco Landscape.

a. The Draft EIS does not evaluate adequate alternatives for managing and limiting the impacts of valid existing rights on the Greater Chaco Landscape.

None of the Draft EIS’s alternatives include a comprehensive strategy for addressing the impacts of valid existing rights, including undeveloped oil and gas leases. As noted above, ongoing development continues to have significant impacts on Pierre’s Site, the Great North Road, and other cultural features in the Greater Chaco Landscape. Further development on existing leases is foreseeable, given the presence of undeveloped leases throughout the Greater Chaco Landscape, along with recent project approvals.

Even though BLM received comments during the scoping period on the need to address the impacts of existing development, which included specific recommendations on how the management of valid existing rights could be enhanced, the Draft EIS instead focuses almost entirely on managing future oil and gas leasing. For example, Archaeology Southwest, Friends of Cedar Mesa, the National Parks Conservation Association, and The Wilderness Society identified a suite of measures that BLM should have evaluated in the Draft EIS, including:

• Requiring operators to prepare viewshed and soundscape analyses in advance of drilling projects within and near sensitive areas;
• Prioritizing drilling projects that would avoid or limit impacts on sensitive areas; and
• Prioritizing reclamation and restoration activities in Pierre’s Site, the Great North Road, and other areas where past or ongoing development has directly or indirectly affected cultural resources.

Letter from Archaeology Southwest et al., to BLM 6-9 (Feb. 20, 2017).

Yet, BLM ignored these recommendations in the Draft EIS and instead included the same basic set of measures to address the impacts of valid existing rights in each of the action alternatives. See, e.g., Draft EIS at 2-29 (“Companies applying for permits to drill may be required to evaluate a phased development plan, liquid gathering systems, off-site facilities, the use of new technology, such as directional and horizontal drilling from existing pads and other techniques to reduce surface disturbance with its consequent impacts on cultural, recreation, lands managed to protect wilderness characteristics, soil, water, vegetation, wildlife, special status species, and air resources.”). Most of these measures are discretionary and would not provide robust and enforceable mechanisms for addressing the impacts of valid existing rights on the Greater Chaco Landscape. Such a strategy is clearly consistent with BLM’s statutory mandates under FLPMA, NEPA, and the NHPA, as well as with the Draft EIS’s purpose and need. See Draft EIS at 1-2 (“The primary purpose of this planning action is to adapt to changing oil and gas development patterns in the Mancos/Gallup formations under BLM administration” and “the need for planning is established by BLM requirements and authority under” NEPA, FLPMA, and other federal laws.”). Further, just five years ago, BLM recognized that its approach to mitigating the impacts of development was “vague” and “could be update [sic] or better defined.” AMS at 2-114.

In sum, BLM is treating already-issued oil and gas leases and other valid existing rights as if they are sacrosanct and any ongoing or future impacts associated with the exercise of those rights as unavoidable. NEPA requires otherwise, and BLM must develop alternatives that include a robust and enforceable strategy to address the cumulative impacts of valid existing oil and gas rights on cultural resources in the Greater Chaco Landscape.

b. BLM must evaluate an “option value” or delay alternative.

BLM has also not evaluated a delay alternative where leasing and development would be paused pending the completion of ongoing and planned archaeological surveys and ethnographic studies, as well as to account for the historic decline in oil prices and its enormous impact on the oil and gas industry. The concept of delaying decisions in order to maximize benefits to the public is known as “option value.” According to the New York University Institute for Policy Integrity,

[o]ption value arises in situations that are characterized by two features: uncertainty and irreversibility. Uncertainty is present when the expected value to be derived from a given action may change, or when the costs and benefits associated with the action are subject to doubt. Irreversibility is present when the action cannot be undone, or when the action entails sunk costs that make the prospect of reversal highly improbable. Under these conditions, the passage of time will often reduce uncertainty about the expected value of the irreversible action, by revealing more precise details regarding its costs and benefits. Option value is present in a wide variety of settings. The concept is firmly established in economic literature. . . .

Jayni Hein et al., Look Before You Lease 3 (Jan. 2020). Option value applies in the context of BLM land use planning decisions by providing an analytical framework for determining whether and at what point to irretrievably commit resources to development. Id. at 14-16. For example, BLM could decide to only make lands with high development potential available for leasing so that remaining lands “would then be available for more beneficial uses, such as ecosystem conservation, carbon sink purposes, renewable energy development, watershed protection, and recreation.” Id. at 14. BLM could also decide to indefinitely defer future leasing and development decisions, based on “[c]urrent and expected resource prices in the United States and global energy markets. . . .” Id. at 16.

Here, as discussed above, there are significant uncertainties about the current condition of cultural resources in the Greater Chaco Landscape. There are also ongoing efforts to fill that informational void, including “a cultural resources investigation to identify culturally and historically significant areas and sites in areas of high energy development potential within the Chaco Canyon region of the Southwest.” Explanatory Statement, Further Consolidated Appropriations Act, 2020, Pub. L. No. 116-94, 133 Stat. 2534 Div. D-2 [hereinafter Explanatory Statement]. Congress authorized and appropriated $1 million to fund this investigation in the Further Consolidated Appropriations Act, 2020. Pub. L. No. 116-94, 133 Stat. 2534; see also Explanatory Statement at Div. D-2. Separately, the Pueblo of Acoma and Zuni Tribe are currently conducting ethnographic studies to document cultural ties to the Greater Chaco Landscape and identify specific locales that harbor traditional cultural values. These studies should be finished within the next few months. Finally, prior to the onset of federal and state stay-at-home restrictions related to COVID-19, Archaeology Southwest had planned to conduct a targeted survey of several Chacoan outliers in the Greater Chaco Landscape in order to document their current condition. Archaeology Southwest was able to get some fieldwork completed and a preliminary summary report prepared. See Paul F. Reed, An Archaeological Reconnaissance of Chaco’s 10-Mile Zone of Protection (Sept. 2020). Additional data will be forthcoming.

Additionally, there is now unprecedented uncertainty surrounding the oil and gas industry. Over the past few months, historically low oil prices have forced oil and gas companies to slash exploration and production budgets and shut-in existing projects throughout the country and, in particular, in New Mexico. For example, the number of drill rigs operating in New Mexico declined by about 61 percent from September 2019 to September 2020. Baker Hughes, North America Rig Count, Rigs By State — Current and Historical (downloaded on Sept. 18, 2020). And, according to recent reports, activity in the San Juan Basin has all but ground to a halt:

in the San Juan Basin, chronically depressed prices have kept output flat, at best. In fact, in late January, the wholesale price fell below $1.90 per Mcf, its lowest level since March 2016, thanks to a moderately warm winter, plus national gas storage levels that are 20% higher than this time last year, according to the U.S. Energy Information Administration.

“Gas prices have gone from bad to worse,” said George Sharpe, investment manager with Merrion Oil and Gas Corp. in Farmington. “It’s hard to justify drilling anywhere at these prices.”

There are about 25,000 wells still operating on New Mexico’s side of the San Juan, but about 80% are considered marginal wells that produce less than 90 Mcf per day, Sharpe said.

There was a spurt of drilling activity from about 2012 to 2014 in the San Juan’s Mancos shale formation, an oil-rich zone sandwiched in between the basin’s dry natural gas reservoirs. For a short time, that raised hopes for a San Juan revival based mostly on oil rather than the basin’s traditional gas production. But when oil prices crashed in late 2014, Mancos activity ground to a near halt.

Kevin Robinson-Avila, NM gas production up significantly, Alb. Journal (Feb. 10, 2020). This downward trajectory is not expected to change anytime soon. The Energy Information Administration (EIA) now predicts that oil prices will average just $39/barrel in 2020 and $45/barrel in 2021. EIA, Short-Term Energy Outlook (Sept. 9, 2020). This is well below the “breakeven price of between $50 and $55 per barrel” for shale oil. Natasha Turak, Whiting Petroleum is just the ‘first domino’ to fall in US shale wipeout, strategist says, CNBC (Apr. 2, 2020). “An April survey of energy producers by the Federal Reserve Bank of Kansas City found nearly 40% would be insolvent within a year if oil prices remained around $30 a barrel. U.S. crude prices closed under $14 a barrel on Wednesday.” Jessica Resnick-Ault & David French, Bankruptcy looms over U.S. energy industry, from oil fields to pipelines, Reuters (Apr. 22, 2020). Rising bankruptcies will increase the risk of well abandonments, which cause a wide range of fiscal and environmental problems, particularly in places like the Farmington Field Office where 80 percent of wells are already marginal producers.

The recent economic downturn undermines fundamental assumptions upon which the Draft EIS is based. For instance, in the 2019 Farmington Reasonable Foreseeable Development Scenario (RFD) for Oil & Gas Activities, BLM “assume[d] that oil and natural gas prices will follow [EIA’s 2017] projections (Annual Energy Outlook, 2017).” Draft EIS at App. I-2. Based on that assumption, the Draft EIS “projects estimated production amounts and activity levels through the 20-year planning period.” Draft EIS at 3-3. BLM, in turn, employed these projections to develop the Draft EIS’s range of alternatives and analyze potential impacts. See id. at 3-3 to 3-5.

However, basic assumptions underpinning the 2019 RFD are no longer valid. In fact, EIA is now predicting that oil prices will be 38% lower in 2021 than it did in its 2017 Annual Energy Outlook, which BLM “assumed” would hold for the foreseeable future. EIA, Short-Term Energy Outlook. Further, it is possible, if not probable, that demand for new leases and drilling permits will decline sharply in the San Juan Basin, while existing operators in the San Juan Basin may become insolvent, giving rise to an increase in well abandonments. This now-foreseeable scenario could spawn a host of environmental and social issues that are not considered in the Draft EIS and that could have significant consequences for cultural and natural resources in the Greater Chaco Landscape. Given this uncertainty, it is imperative and, in fact, legally required that BLM develop and evaluate additional alternatives based on delaying future leasing and development decisions.

Notably, BLM has evaluated and adopted such alternatives in other planning areas. For example, in the White River Field Office’s 2015 RMP Amendment for Oil & Gas Development, BLM chose to defer future leasing around Dinosaur National Monument because of uncertainty about the impacts of development on the monument:

Leasing within the MLP would progress in phases to address resource values and concerns. Leasing would first occur in the southern portion of the MLP, where the oil and gas occurrence potential is rated medium to high. Leasing within sage- grouse habitat, areas of low oil and gas potential, or areas adjacent to Dinosaur National Monument would occur once the BLM has completed additional analysis and planning. Within sage-grouse habitat in the MLP, sage-grouse management would be emphasized and leasing would only occur after the BLM has issued the Record of Decision for the Northwest Colorado Greater Sage-Grouse RMPA (193,000 acres). In areas of the MLP that are outside of sage-grouse habitat, but are within either low oil and gas potential or adjacent to Dinosaur National Monument Headquarters leasing would only occur after the BLM has completed a RMP Revision and determined whether or not leasing is appropriate given considerations such as the potential impacts to visual resources, night skies, and soundscapes (25,300 acres).

BLM, White River Oil & Gas RMP Amendment 2-45 (Aug. 2015) (emphasis added).

In sum, option value is a “firmly established” methodology for evaluating and responding to uncertainty. There is presently significant uncertainty about the current condition of cultural resources in the Greater Chaco Landscape, given BLM’s inability or unwillingness to obtain adequate baseline information about those resources. Several studies are now moving forward in an attempt to document the condition of cultural resources in the Greater Chaco Landscape.
Further, there is significant economic uncertainty that undermines the validity of the Draft EIS’s development forecasts. Accordingly, an alternative (or alternatives) that accounts for these uncertainties by delaying leasing and development decisions is clearly reasonable and must be evaluated by BLM.

4. BLM must prepare a supplemental EIS.

Considering the recent downturn in the oil and gas industry and forthcoming information about the location, significance, and condition of cultural resources in the Greater Chaco Landscape, BLM must prepare a supplemental EIS. Under NEPA, BLM must supplement a Draft EIS “if . . . there are significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts.” 40 C.F.R. § 1502.9(c)(1)(ii). “If there remains major Federal actio[n] to occur, and if the new information is sufficient to show that the remaining action will affec[t] the quality of the human environment in a significant manner or to a significant extent not already considered, a supplemental EIS must be prepared.” Marsh v. Or. Natural Resources Council, 490 U.S. 360, 374 (1989) (internal quotations omitted). Those criteria are clearly met here.

As documented above, significant new information has recently emerged about the financial condition of the oil and gas industry that touches on every aspect of this planning process. For instance, the Draft EIS does not envision or evaluate a scenario where oil and gas operators in the Farmington Field Office become insolvent or otherwise avoid fulfilling their reclamation responsibilities. In fact, BLM assumed that oil and gas operators “will be in compliance with . . . federal regulations, BLM policies, BIA policies, and other requirements.” Draft EIS at EC-1. Nor does the current range of alternatives account for the industry downturn; in fact, each alternative assumes that leasing and development will continue completely independent of market conditions. Thus, BLM cannot say that an alternative that would curb leasing and development based on market considerations is “qualitatively” within the current range. See Wyoming v. U.S. Dep’t of Agric., 661 F.3d 1209, 1260 (10th Cir. 2011) (requiring a supplemental EIS when alternatives are proposed that are not “qualitatively within the spectrum of alternatives that were discussed in the [DEIS]”).

Also as explained above, there are currently at least four ongoing cultural resource investigations and/or ethnographic studies specific to the Greater Chaco Landscape. Archaeology Southwest’s study in the 10-mile zone has revealed significant site clusters and communities that are not protected beyond normal BLM and BIA Section 106 protocols. These findings and ongoing efforts will surely provide significant new information about the location and nature of TCPs and sacred sites in the Greater Landscape, as well as the current condition of those and other cultural features. BLM knows that “a thorough analysis of the actual rate of change” in the condition of cultural resources does not exist, and is also aware of repeated requests for higher quality baseline information about the condition of cultural resources in the Greater Chaco Landscape from other federal agencies, tribes, and archaeological experts. Now that efforts are moving forward to document the condition of cultural features in the Greater Chaco Landscape, BLM must wait until this information is available and then prepare a supplemental EIS. See Public Emples. for Envtl.
Responsibility v. Hopper, 827 F.3d 1077, 1083 (D.C Cir. 2016) (ordering the Bureau of Ocean Energy Management to “supplement [a Draft EIS] with adequate geological surveys” prior to advancing a wind energy project).

As documented in the Draft EIS, oil and gas development has been the predominant use in the Farmington Field Office for decades. BLM has already leased 1.8 million acres in the Farmington Field Office for development – an astonishing “92% of Federal fluid minerals within the planning area.” Draft EIS at 1. Industry has also drilled over 37,000 wells and built a 15,000-mile long network of access roads within the planning area. Id. at AE-92. And if nothing changes (i.e., under the no-action alternative), then oil and gas leasing could continue on 95 percent of the planning area. Id. at 3-121.

Intensive oil and gas development has profoundly damaged the physical integrity, context, and setting of cultural resources in the Greater Chaco Landscape. Development has “destroyed” portions of the Great North Road. Van Dyke et al. at 50. Significant cultural resources, like Pierre’s Site, have “the feeling of an industrial park.” Ruth M. Van Dyke, Impacts of Oil and Gas Drilling on Viewscapes and Soundscapes at the Chaco Outlier of Pierre’s, San Juan County, New Mexico (Feb. 16, 2017). And “continued oil and gas development . . . has significant impacts on APCG members’ cultural resources that lie within close proximity to Chaco Culture NHP as well as through the Greater Chaco Region.” Letter from E. Paul Torres, Chairman, APCG, to State Director, BLM, at 3 (Feb. 20, 2019).

Yet, over the years, BLM has rejected calls from ACHP and NPS to rebalance its management of the Greater Chaco Landscape. ACHP has stated that:

Draft EIS at AE-71. By contrast, BLM has surveyed just “558 acres since 2010 related to Section 110 [of the NHPA],” which requires proactive cultural resources inventory and management efforts. 54 U.S.C. § 306102. None of the locations surveyed under Section 110 that BLM identifies in the Draft EIS are located anywhere near Chaco Culture NHP. Id. at AE-72.

Thus, over the years, the location of development projects with potential adverse effects has driven the identification of cultural resources in the Greater Chaco Landscape. As a consequence, existing cultural resources data “are geographically biased toward past project-oriented undertakings (i.e., where cultural resource surveys have taken place) and may not accurately predict where and how many resources may exist in unsurveyed areas.” Draft EIS at EC-42. Simply put, the Greater Chaco Landscape has not been systematically surveyed for cultural resources, including TCPs and sacred sites, and there is still no “thorough analysis of the actual rate of change [in the condition of cultural resources].” Draft EIS at 3-119.

In sum, BLM’s multiple use mandate requires careful and thoughtful balancing between developing and conserving resources and decision-making based on current inventories of “public lands and their resource and other values.” See 43 U.S.C. § 1702(c) (directing BLM to achieve “a combination of balanced and diverse resource uses that takes into account the long-term needs of future generations for renewable and non-renewable resources, including, but not limited to, recreation, range, timber, minerals, watershed, wildlife and fish, and natural scenic, scientific and historical values”). Over the years, the balance in the Farmington Field Office has swung decidedly away from conserving cultural and natural resources and toward development. Accordingly, BLM has an affirmative obligation to comply with its multiple use mandate by prioritizing conservation alternatives for the Greater Chaco Landscape.

2. BLM has not sufficiently explained why the preferred alternative is not consistent with New Mexico State Land Office Executive Order 2019-002 “to the maximum extent” possible.

D. BLM Has Not Complied with the World Heritage Convention.

1. The United States’ responsibilities under the World Heritage Convention and Operational Guidelines are not adequately described in the Draft EIS.

The World Heritage Convention establishes a system of identification, preservation, and registration of cultural properties and natural sites of Outstanding Universal Value. The Preamble of the Convention recognizes that “the deterioration or disappearance of any item of the cultural or natural heritage constitutes a harmful impoverishment of the heritage of all nations” and establishes the “importance, for all the peoples of the world, of safeguarding this unique and irreplaceable property” as “part of the world heritage of mankind as a whole.”¹¹See https://whc.unesco.org/archive/convention-en.pdf.

The Operational Guidelines for the Implementation of the World Heritage Convention outline the substantive obligations State Parties have to protect inscribed World Heritage Sites.¹²See https://whc.unesco.org/en/guidelines/. These include measures to ensure their protection and continual efforts to monitor and submit periodic reports regarding the status of those sites and ongoing threats. Specifically, States Parties have the obligation to have:

• adequate long-term legislative, regulatory, institutional and/or traditional protection and management to ensure the safeguarding of World Heritage Sites (Article II.F, Clause 97);
• legislative and regulatory measures at national and local levels to assure the protection of the property from social, economic and other pressures or changes that might negatively impact the Outstanding Universal Value, including the integrity and/or authenticity of the property (Article II.F, Clause 98);
• an appropriate management plan or other documented management system which must specify how the Outstanding Universal Value of a property should be preserved, preferably through participatory means.” (Article II.F, Clause 108); and must also
• submit specific reports and impact studies each time exceptional circumstances occur or work is undertaken which may have an impact on the Outstanding Universal Value of the property or its state of conservation. (Article IV.B, Clause 169); and
• submit periodic reports for examination by the World Heritage Committee (Article V.B, Clause 204).

Recommendation: Supplement the EIS with specific reference to how each alternative under consideration would address threats to Chacoan Outliers, including those protected under existing ACECs, as well as others that remain vulnerable. If BLM/BIA elect to pursue an alternative which threatens to diminish the integrity of World Heritage Sites, include a plan for notification to the World Heritage Committee under Clause 169 of the Operational Guidelines.

2. The Chaco Culture 2013 Periodic Report indicated increasing harm to outliers not specifically addressed in the Draft EIS.

On its website, UNESCO notes increased threats to the overall integrity of Chaco Culture “from adjacent development (including associated utilities and roads), energy exploration, extraction, as well as transportation projects and proposals.” ¹³See https://whc.unesco.org/en/list/353.

UNESCO’s observation is substantiated by the United States’ last periodic report for Chaco Culture, prepared in 2013 by the National Park Service Office of International Affairs.¹⁴See https://whc.unesco.org/en/list/353/documents/) This report documented worrying trends such as increasing and widespread air pollution, increasing deliberate destruction of heritage, and increasing illegal activity. At the same time the report found an increasing trend of the use of the property for ritual, spiritual, religious and associative uses. As the report documented:

Energy exploration and extraction, specifically oil and gas production currently threatens viewshed and the associated cultural landscape. Uncontrolled homesite lease development and associated infrastructure on adjoining lands also impacts the cultural landscape and viewshed. The property is currently protected by its remote setting and lack of roads but these developments expose the boundaries to unauthorized access and increased vandalism.

The report further explained: “If energy exploration and extraction, uncontrolled infrastructure development or other external threats increase, adjacent landowners and managers may recommend a buffer zone that surrounds the property as a method for addressing cumulative impacts.”

These observations have been supplemented with data that suggests oil and gas leasing in the vicinity of Outliers is diminishing their integrity. In 2017, Dr. Ruth Van Dyke profiled impacts to Pierre’s site. The author noted that a pumpjack, Dugan Production Corp Hoss Com #95, was located just outside the Pierre’s community only 650 m southwest of the butte. She reported that the noise of this machinery is audible within the outlier community.

Recommendation: Supplement the EIS with specific information as to how each alternative under consideration would address threats to Outliers, including those protected under existing ACECs as well as others that remain vulnerable. BLM should also inquire with the NPS about the state of the next periodic report and ensure that data included in the adopted management alternative is provided to the UNESCO World Heritage Centre in a timely manner.

3. NSO stipulations are insufficient for preventing harm to Chaco Culture National Historical Park and the Chacoan outliers of Pueblo Pintado and Kin Bineola.

We are very concerned that the NSO stipulations around CCNHP and the Chacoan outliers of Pueblo Pintado and Kin Bineola proposed in Alternative C (BLM’s preferred alternative) are insufficient to prevent harm to the resources and values within these important cultural sites. Alternative C would establish NSO stipulations of as little as 0-2 miles to as much as 0-10 miles around the respective site boundaries. As discussed previously, the proposed NSO stipulations offer incomplete protection as exploiting subsurface minerals through horizontal drilling and hydraulic fracturing

Further, as explained previously, the Draft RMPA/EIS would allow companies to obtain waivers and exceptions to the NSO stipulations for any or all of these lease parcels. Such an approach would conflict with conservation of CCNHP’s resources and values under the NPS Organic Act, and would clearly not fulfill BLM’s obligation to provide “adequate long-term legislative, regulatory, institutional and/or traditional protection and management to ensure the safeguarding of World Heritage Sites.” UNESCO, Operational Guidelines for the Implementation of the World Heritage Convention 29 (July 2019). Thus, subsurface development in the immediate vicinity of CCNHP and the Chacoan outliers of Pueblo Pintado and Kin Bineola has the potential to cause harmful impacts to sites’ integrity and threats to their viewshed and soundscape.

By proposing these NSOs rather than more protective measures in its Preferred Alternative, BLM is making a conscious decision not to prioritize the protection of cultural resources over fluid mineral leasing in these boundary areas. Such a decision, in effect, would institutionalize uncertainty and elevate controversy regarding the adequacy of future protection of these important cultural sites for the life of the plan.

In stark contrast to BLM’s preference for NSO stipulations, there is strong support among the conservation and historic preservation communities, as well as from NPS and affected Tribes, for the establishment of a 10-mile no leasing restriction zone around these sites, as described in BLM Alternative B1. Similarly, there has been growing concern in the halls of Congress regarding BLM’s current and future leasing activities in this area, as demonstrated by the House of Representatives passing the Chaco Cultural Heritage Area Protection Act of 2019 (H.R. 2181).

We urge BLM to incorporate the 10-mile no leasing restriction zone, along with Alternative B1’s 3- mile restriction zone around designated Chacoan roads, into its Preferred Alternative. Doing so would be the most practical and effective manner for BLM to ensure adequate preservation of the affected cultural sites into the future. While this seems like a common sense approach to us, in describing its preference for NSO stipulations, BLM has failed to adequately explain or justify its preference for NSO stipulations or how that would protect cultural resources as effectively as the recommended 10-mile NL restriction zone.

4. NSO stipulations are insufficient for preventing harm to other outlier sites.

The surface resources at the Outliers at Chaco Culture have some protections as ACECs. Yet the proposed stipulations offer incomplete protection as exploiting subsurface minerals through directional or horizontal drilling beneath the Outliers creates unique vulnerabilities. The RMPA recognizes that “nothing in current legislation or the RMP precludes oil and gas development adjacent to these ACEC.” See Draft RMPA at 3-118. Further, as explained above, the Draft RMPA/EIS would allow companies to obtain waivers and exceptions to the NSO stipulations that would apply to Chaco outliers. Such an approach would not fulfill BLM’s obligation to provide “adequate long- term legislative, regulatory, institutional and/or traditional protection and management to ensure the safeguarding of World Heritage Sites.” UNESCO, Operational Guidelines for the Implementation of the World Heritage Convention 29 (July 2019). Thus, subsurface development in the vicinity of Outliers has the potential to cause harmful impacts to site integrity and threats to their viewshed and soundscape.

Recommendation: In a supplemental EIS the BLM should re-evaluate plans to allow for the extraction of subsurface minerals at Outlier sites. Even if subsurface minerals are obtained through horizontal or directional drilling, industrial operations near the sites can cause harmful impacts and reduce their site integrity which would be inconsistent with the United States’ commitments under the World Heritage Convention.

5. BLM’s approach to managing formal Chacoan outliers and candidate outlier sites is inconsistent leading to a confused analysis of how BLM intends to honor its obligations under the World Heritage Convention.

Since the 1995 determination by Congress that the Chaco Culture World Heritage Site consists of 39 distinct Outliers (aka “Chaco Protection Sites”), new research has revealed more substantial connections across the Greater Chaco Landscape. As a result, many sites within the jurisdiction of the FFO and the planning area deserve increased scrutiny in this long-range planning effort.

BLM appears to acknowledge this new substantive knowledge in utilizing the term “outlier” to describe multiple significant sites on the Chaco landscape not listed in the 1995 legislation (see AE- 70 and Figure AE-15 including Jackson Lake, La Plata, Holmes Group, Sterling, Point Pueblo, Casa del Rio, Mesa Tierra, Casa Escondida, Casa Patricio, Tse Lichii, Raton Well, and Reservoir Ruin). However, it is very unclear to the reader how BLM distinguishes among sites and for what reasons. Yet this information is highly relevant for providing the public an informed view of how BLM honors its commitment to the World Heritage Site. More information in the EIS is necessary to help the public ascertain why management approaches differ among formally designated Outliers as well as related sites that have been acknowledged as having considerable importance.

The lack of detail with respect to Outliers is particularly problematic as they are not consistently managed under the current RMP. For instance, the 2003 RMP lists the “Jacques Chacoan Community” — presumably the Outlier described as “Jaquez” in the 1995 legislation — as protected only through NSO stipulations and not “Discretionary Closure” as the others. Further, The Hogback, another Outlier in the 1995 legislation, is protected in the RMP only as a site that hosts endangered species and not for its cultural associations.

Recommendation: The RMPA provides BLM an opportunity to provide for a more coordinated approach to managing both formally designated Outliers and candidate outliers, including the ancient road system. Establishing a single ACEC collective of outlier sites – those designated and candidates for designation – would provide more assurance of that BLM takes seriously its responsibilities for World Heritage.

6. The Draft EIS fails to disclose the important role and responsibilities of UNESCO’s Interagency Management Group.

IV. COMMUNITY AND HEALTH IMPACTS

This planning effort can and should be an example of putting the commitments the agency has outlined in its scoping report into action for the benefit of all stakeholders and the greater Chaco landscape. The planning process should also recognize, and provide outreach to and fully address the important concerns and perspectives of Navajo and all affiliated Pueblo tribes, including those identified in resolutions adopted by the All Pueblo Council of Governors, tribal members living around Chaco Culture NHP, and Navajo chapters. For example, evaluating and addressing the impacts to the health and economic welfare of surrounding communities can and should be an integral part of this planning process. It will also be important for the agencies to incorporate into this planning process a clear commitment and framework for ongoing coordination and consultation with pueblos, tribes and local residents over future oil and gas activity in the greater Chaco landscape.

The risks of adverse impacts to cultural, social, economic, and environmental resources are especially significant in the Farmington Field Office. The BLM is responsible for the management of public lands and resources and their various values so that they are considered in a combination that will best serve the needs of the American people. Management is based on “multiple use” principles—a combination of uses that account for the long-term needs of future generations for renewable and nonrenewable resources. Among these resources is public health and safety. Local residents, tribal members and allottees have all expressed serious concerns about the impacts of oil and gas development on local air and water quality, as well as noise and dust from nearby operations. High levels of unemployment among tribal members offer opportunities to develop partnerships providing for job training and local hiring initiatives in a range of vocations. Additionally, resources within Chaco Culture NHP, and its web of connected sites, are of deep spiritual and cultural significance to local and Pueblo tribes.

The agency’s scoping report committed the BLM to developing an RMPA which would address climate change, water and soil resources, environmental justice, the “Chaco Cultural Landscape”, public health and safety, Tribal interest and trust responsibilities, truck traffic and road conditions, wildlife, and other issues impacted by oil and gas drilling. Farmington Mancos-Gallup Resource Management Plan Amendment S-5 and Environmental Impact Statement Scoping Report, Issue Summary, S-5 – S-6.

The impact that the BLM’s preferred Alternative C would have on each of these environmental, cultural, and social values demonstrates that the BLM, if they were to adopt Alternative C, would fail to fulfill its regulatory obligation and break its promise. Just acknowledging environmental justice impacts as concepts and not reflected in the RMPA regulatory framework is not enough. In section
3.7.3 of the Draft RMPA/EIS, BLM defines environmental justice as need for “fair treatment and meaningful involvement of people of all races, cultures, and incomes, with respect to the development, implementation, and enforcement of environmental laws, regulations, programs, and policies.” See Draft RMPA at 3-218. It identifies the demographic makeup in the planning area of low-income, minority, and Native American populations, and cites meetings held to achieve tribal consultation in Chapter 4, Consultation and Coordination – yet, nowhere is the cumulative impact of industrialized oil and gas drilling on health taken into account, even after a public input process and lengthy process of developing the RMPA. The BLM must include prescribed ways in which it will mitigate human health impacts from any and all future oil and gas development, as well as concerns presented by the communities in health impact assessments performed in response to the acceleration in oil and gas development and communities’ observance of how development has impacted human health and ecological resilience.

A 2017 citizen science report chronicled local complaints of nausea, burning eyes, respiratory problems, recurring headaches — all of which, studies have shown, can be caused by chemicals released during the extraction, processing and transport of oil and gas. Health Impact Reports Summary Oil & Gas Well Exposure 2015 – 2017 Counselor Chapter New Mexico.

While BLM’s Preferred Alternative C claims that “human health and the environment” are among its priorities, this Alternative proposes 3,068-3,085 new wells in the planning area, only 16-33 fewer wells than proposed in the “maximum development” scenario—Alternative D—which would contribute to the further degradation of air and water quality, noise and viewshed resources, and potentially cause damage to the many as-yet unknown archaeological sites located in the planning area surrounding CCNHP.

BLM admits its proposed oil and gas plan will exceed safe public health and air quality limits for all development scenarios, yet offer no plans to mitigate those risks posed by oil and gas drilling. See Draft RMPA at ES-7.1.

A. Government-to-Government Consultation On Energy Development

As another example, on the Wind River Indian Reservation in Wyoming, BLM, BIA and the Arapaho and Shoshone Tribes entered an MOU that, among other things, “formalize[d] a structure for future communications between the parties regarding environmental concerns arising from oil and gas operations.”¹⁶See BLM Press Release, “Tribes, BIA and BLM Collaborate on Oil and Gas Operations” (Feb. 28, 2014) available at https://www.blm.gov/wy/st/en/info/news_room/2014/february/28lfo-mou.html Similarly, in the Socorro (New Mexico) RMP, BLM and the Zuni Pueblo agreed to enter into a MOU to outline consultation procedures for future actions that might affect the Zuni Salt Lake, an area of cultural significance to the Zuni. BLM Socorro RMP 7 (2010). A similar, formal partnership would make sense in the Farmington Field Office planning area, where future site- specific development approvals will frequently require consultation, coordination and outreach to tribes, allottees and the public.

The issue of access to this planning process by stakeholders most affected by the RMPA has been raised time and again by the Navajo Nation Council, APCG, the entire New Mexico Delegation, and multiple groups, individuals, and Pueblo governments. This RMPA is of interest to various stakeholders, including the Navajo Nation, the All-Pueblo Council of Governors, the New Mexico pueblos, and other communities in largely rural areas. As recently reported by the Albuquerque Journal, “less than half of households on tribal lands have access to fixed broadband service, representing a nearly 27% gap compared with non-tribal rural areas. In 2018, the [Federal Communications Commission] estimated 35% of Americans living on Tribal lands lacked access to broadband services, compared with 8% of all Americans.” With such a dearth of reliable internet service among critical stakeholders, digital meetings are similarly not feasible at this time. The only way to ensure public engagement and a genuine process is to extend or suspend public comment periods affected by the COVID-19 pandemic until it is once again safe for in person meetings and the federal, state, and local authorities lift restrictions around public gatherings and social distancing to allow for in-person meetings.¹⁷Albuquerque Journal, Bill would speed broadband access, Feb. 22, 2020, available at https://www.abqjournal.com/1423573/bill-would-speed-broadband-access.html.

B. Recommendations for Populated Areas, Traditional Cultural Properties, and Sacred Sites

Landscape level planning in northwestern New Mexico is sorely needed. By expanding the planning area boundary to capture tribal and allotted lands, BLM and BIA have taken a critical step toward implementing a landscape-scale planning approach in the planning area. Without tribal and allotted lands in the decision space, comprehensive management and protection of the network of connected cultural and archaeological sites around Chaco Culture NHP would have been effectively impossible. Likewise, a plan with decisions for only federal public (but not tribal and allotted) lands and minerals would not be able to address the significant human health concerns of local residents.

Now that tribal and allotted lands are included, BLM and BIA must aim to protect cultural resources and address environmental justice concerns at a landscape-level. Below, we identify distinct areas, each “characterized by a set of common management concerns,” that BLM and BIA should manage under unique management prescriptions at a landscape-level:

a. Apply setbacks to protect occupied properties and areas, such as schools, houses, and community centers.
b. Impose strict air quality emissions standards and fugitive dust control plans.
c. Impose strict methane emissions standards to protect public health and livestock, as well as to avoid waste of natural gas.
d. Require closed loop drilling and other strict water quality protections.
e. Impose operator and agency-based air and water testing and monitoring requirements as well as strict agency-based inspection and enforcement requirements.
f. Impose a strict decibel-based limit to reduce noise near homes, residences, schools, and other occupied areas.
g. Limit flaring and artificial lighting.
h. Limit truck traffic.
i. Require unitization, communitization and master development plans across federal, tribal and allotted lands to co-locate infrastructure.

We also urge the BLM to adopt the ten-mile buffer zone in Sub-Alternative B1, as this option would prevent the most cumulative impacts on public health and safety in areas closed to fluid mineral leasing.

C. Environmental Justice and Cumulative Impacts of Oil and Gas Drilling on Public Health

Under BLM and BIA Alternatives B1 and A, air emissions are predicted to be second lowest of all alternatives; air emissions are predicted to be the least under BLM Sub-Alternative B2. See Draft RMPA at ES-4. Therefore, we urge the BLM to adopt the ten-mile buffer zone set forth in Sub- Alternative B1 in its final version of the RMPA. Because overall projected development would be the lowest under BLM Alternatives A and B (including BLM Sub-Alternatives B1 and B2), generalized risks to public health and safety from air emissions, noise, light pollution, and traffic would also decrease. Compared with the BLM No-Action Alternative, Sub-Alternatives B1 and B2 would result in only slightly reduced fugitive dust emissions, respectively reducing surface disturbance by 2% and 3%. BLM Sub-Alternative B1 generally would have a 25 percent reduction in air emissions from well development, compared with the BLM No Action Alternative, and Sub-Alternative B2 would result in an approximately 40 percent decrease in BLM-permitted well development (3-28). We urge BLM to adopt the ten-mile buffer zone set forth in Sub-Alternative B1 as it mostly incorporates the 10-mile protection zone that would be established by the Chaco Culture Heritage Area Protection Act. With that alternative we request that BLM incorporate strict fugitive dust control plans into its final planning document. Particulate matter has had an extremely detrimental impact on the public health of communities in the planning area.¹⁸See https://nmpoliticalreport.com/2020/04/23/report-climate-change-oil-gas-emissions-a-bad-mix-for- new-mexico-air-quality/, https://nmpoliticalreport.com/2020/04/15/for-greater-chaco-communities-air- pollution-compounds-covid-19-threat/. San Juan County, in the 2020 State of the Air Report, received an F grade, despite being a largely rural county with low population density.¹⁹See http://www.stateoftheair.org/city-rankings/states/new-mexico/san-juan.html.

The impact to public health from industrialized drilling and associated climate impacts cannot be understated, particularly with such a rampant acceleration in so short a period of time. A 2014 review identified 15 different components of unconventional oil and gas development, everything from trucks and tanks to chemicals and venting, which can present a chemical, physical and/or safety hazard. John L. Adgate et al., Potential Public Health Hazards, Exposures and Health Effects from Unconventional Natural Gas Development, 48 ENVIRONMENTAL SCIENCE & TECHNOLOGY 8307 (Feb. 24, 2014).

Residents living near drilling and fracking operations experience increased reproductive harms, asthma attacks, rates of hospitalization, ambulance runs, emergency room visits, self-reported respiratory problems and rashes, motor vehicle fatalities, trauma, and drug abuse. A 2019 Physicians for Social Responsibility review concluded:

Across the country, multiple studies have pointed to the negative impacts of oil and gas development on community health, raising deep environmental justice concerns. In Pennsylvania, the following symptoms were reported by over half the people living near gas development who responded to a health survey. They included fatigue (62%), nasal irritation (61%), throat irritation (60%), sinus problems (58%), burning eyes (53%), shortness of breath (52%), joint pain (52%), feeling weak and tired (52%), severe headaches (51%), and sleep disturbance (51%). The survey was completed by 108 individuals (in 55 households) in 14 counties across Pennsylvania. Nadia Steinzor, et al., Investigating links between shale gas development and health impacts through a community survey project in Pennsylvania, New Solutions, vol. 23 iss. 1. (2013).

In one study, health experts surveyed agreed that oil and gas setbacks of over 1,000 feet were likely inadequate to protect public health, and additional setbacks were necessary to protect young children and elderly people. See Celia Lewis et al., Setback Distances for Unconventional Oil and Gas Development: Delphi Study Results. 13 PLoS One e0202462 (Aug. 16, 2018). Many unconventional oil and gas setback rules, for setbacks of 1000 feet or less, do not adequately protect health, especially children’s respiratory health, that “the majority of municipal setback ordinances are not supported by empirical data,” and calling for a one-mile minimum for setbacks between drilling facilities and schools, hospitals, and occupied dwellings in light of the heightened health risks of residing within .5 mile or less of unconventional oil and gas drilling sites.

One such study found that babies whose mothers lived in close proximity to multiple oil and gas wells were 30% more likely to be born with heart defects than babies born to mothers who did not live close to oil and gas wells, Lisa M. McKenzie et al., Birth Outcomes and Maternal Resident Proximity to Natural Gas Development in Rural Colorado, 122 ENVIRONMENTAL HEALTH PERSPECTIVES 412 (April 2014).

In general, research indicates that the potential cumulative effects of social and environmental stressors and social determinants of health in the context of oil and natural gas activity can increase the risk or magnitude of exposure and the frequency and/or severity of adverse health impacts of oil and gas drilling (e.g., pollution sources are often located closer to communities of color and low- income “environmental justice” communities—in this context largely Navajo residents currently already being hit very hard by COVID-19—underlying health conditions can increase vulnerability to pollution-related health impacts, and pollution-related health impacts can exacerbate existing health and socioeconomic stressors); and they can present obstacles to preventing, diagnosing, managing, and treating adverse health impacts.

A study by Johns Hopkins University, which examined 35,000 medical records of people with asthma in Pennsylvania, found that people who live near a higher number of, or larger, active gas wells were 1.5 to 4 times more likely to suffer from asthma attacks than those living farther away, with the closest groups having the highest risk. Rasmussen, Sara G. et al., Association Between Unconventional Natural Gas Development in the Marcellus Shale and Asthma Exacerbations, 176 JAMA Internal Medicine 1334 (2016). These asthma-related impacts are of particular concern in the communities adjacent to the FFO. In San Juan and Rio Arriba Counties, child asthma hospitalizations exceed the New Mexico state average.²¹New Mexico Dept. of Health, The Burden of Asthma in New Mexico: 2014 Epidemiology Report (Jan. 2014), at 41, available at https://nmhealth.org/data/view/environment/54. The New Mexico Department of Health has noted that low- income populations and “environmental justice” populations face not only disproportionate asthma risks, but also significant difficulty managing their asthma, in part due to lack of access to health care. Rio Arriba and McKinley Counties have some of the highest rates of asthma emergency department visits in Northern New Mexico, also higher than the state average.

In 2017, over 40% of San Juan county residents stated that they have difficulty accessing health care (2017 Community Health Needs Assessment Report San Juan County, New Mexico) often due to geographic constraints but also for economic reasons. Cumulative health effects result throughout the course of life of a person suffering from air pollution related asthma: children with asthma are much more likely to miss school, hurting their educational prospects as well as their health (with some adverse health effects enduring into adulthood), and resulting in significant funding losses for local schools.²²See Attendance Works, Mapping the Early Attendance Gap (2017). Available at http://www.attendanceworks.org/wp-content/uploads/2017/05/Mapping-the-Early-Attendance-Gap_Final- 4.pdf

The agencies should regularly conduct health impact assessments and develop measures to address those impacts: As the agency has acknowledged that each of the alternatives outlined in the Draft RMPA/EIS carries with it an increased adverse impact to public health, the agency should conduct community-based health impact assessments on a regular basis. Oil and gas development and resulting climate change impacts will result in impacts to the health and welfare of surrounding communities. In the planning area, these impacts can also have a differential adverse impact on low income populations or communities of color, creating environmental justice concerns that can and should be addressed in the plan and in any subsequent approved activities. The drilling/ development and production project phases are the most likely times when these impacts can occur.

Once potential health impacts are evaluated, mitigation measures to limit health impacts can be imposed through lease stipulations, COAs and BMPs to limit impacts to air quality and groundwater quantity and quality. The agencies should develop an approach to mitigate impacts that adversely affect and cause a disproportionate effect on low-income populations and communities of color through appropriate measures. In addition, BLM and BIA can develop more extensive outreach campaigns to provide technical and environmental health information directly to groups disproportionately affected by environmental impacts, or to local agencies and representative groups. Included in these campaigns would be descriptions of existing air and groundwater monitoring programs; the nature, extent, and likelihood of existing and future airborne or groundwater releases from oil and gas facilities; and the likely characteristics of environmental and health impacts. Key information would include the extent of any likely impact on air quality, drinking water supplies, subsistence resources, and the relevant preventative measures that may be taken.

D. The Agencies Should Analyze Socio-Economic Impacts and Develop Measures to Mitigate Those Impacts.

In addition to health impacts, oil and gas development can have socioeconomic impacts on local communities. For instance, the influx of construction and operations workers associated with oil and gas development and ancillary facilities in communities with low-income and indigenous populations could lead to the undermining of local community social structures and, consequently, could lead to a range of changes in social and community life, including increases in crime, alcoholism, and drug use. The agencies can evaluate socioeconomic impacts and include those in evaluating the costs and benefits of approving ongoing leasing and development.

As part of their outreach to local communities, BLM and BIA can provide information on the scale and time line of expected oil and gas development, and on the experience of other communities that have followed the same energy development path to local governments and directly to low-income and indigenous populations, together with information on planning activities that may be initiated to provide local infrastructure, public services, education, and housing.

A study by Headwaters Economics recommends what data to track along with ideas for how to approach and develop monitoring protocols to help planners, local leaders, industry, and community members understand and respond to the social and economic impacts of a high intensity industrial activity like hydraulic fracturing. ²³See https://headwaterseconomics.org/energy/oil-gas/energy-monitoring-practices/.

Oil and gas well fields can heighten and extend public costs. Measuring the socioeconomic impacts of industrialized energy development can validate community and local government requests for impact mitigation to offset the need for increased road maintenance and construction, housing, police work, or other costs created by energy development. As well, monitoring can inform adaptive management of the pace and scale of drilling activity to help minimize negative impacts while maximizing benefits.

Headwaters Economics recommends that the following five areas be monitored to more fully assess the impact of oil and gas development more fully on communities:

1. Population growth & worker residency patterns: an influx of temporary and transient workers may create an inflated demand on social services, housing, and infrastructure, straining the capacity of small communities to meet that need.
2. Employment, personal income, and local business effects: monitoring this data can help states and communities understand which types of businesses may be most vulnerable to energy-related economic impacts and guide how and where to direct support before, during, and after boom periods.
3. Cost of living and housing: the average wages in a community experiencing an energy boom may not rise concurrently with the increased energy development. An increased price of living may adversely impact those whose wages do not increase with the rise of energy activity.
4. Service, infrastructure, capacity, and revenue: a region’s tax base may increase with a growth in energy activity, but the appropriation of those funds to address environmental and health impacts may be difficult. A boom in the energy sector of a community may result in an increased need for police, fire protection, roads, water treatment, landfills, and other government activities, all of which can be costly
5. Quality of life and other local concerns: as reflected in multiple community accounts of health concerns, citizen science health assessment studies, numerous complaints filed to the Energy, Minerals, and Natural Resources Department Oil Conservation Division regarding leaks and emissions from oil and gas sites in the Greater Chaco Region, the rapid growth of energy development in the area has resulted in measurable detriments to public and environmental health.

The agencies can also work with operators to look at creative ways to mitigate impacts to local communities, such as through supporting community health screenings, especially those addressing potential health impacts related to the oil and gas industry, vocational training and other measures that can be shown to effectively mitigate harms related to oil and gas development.

We urge the agencies to adopt the ten-mile buffer zone set forth in sub-Alternative B1, and incorporate into their approach to future oil and gas development a thorough assessment of the health and socioeconomic impacts of the projected oil and gas development in the planning area and develop mitigation measures to address those impacts. Public outreach sufficient to fulfill NEPA requirements is acknowledged in the RMPA-EIS Section 4.2. This outreach must take into account relevant literature, including case studies of project impacts on other communities, when conducting outreach and education to the public. BIA can best comply with its obligations and exercise its authority by accounting for social, cultural and environmental resource impacts in management decisions for development on tribal and allotted minerals. BIA should consider a broad range of alternatives to address these types of impacts through this joint planning effort and capitalize on the opportunity to also address the impacts from leasing and development on lands and minerals managed by the BLM. Consideration of existing programs and initiatives through

BIA’s Office of Indian Energy and Economic Development should be examined for its applicability to oil and gas development mitigation in the Chaco region.²⁴See https://teeic.indianaffairs.gov/er/oilgas/mitigation/justice/index.htm; https://teeic.indianaffairs.gov/er/oilgas/mitigation/socio/index.htm

V. CLIMATE CHANGE

A. Climate Change Poses an Existential Threat to our Planet and Humanity, with Public Lands Playing a Key Role.

A large and growing body of scientific research demonstrates, with ever increasing confidence, that climate change is occurring and is caused by emissions of greenhouse gases (GHGs) from human activities, primarily the use of fossil fuels. In an area that is already seeing substantial effects of climate change in temperature and precipitation, it is vital for BLM to consider and analyze impacts of the agency action to the community and climate. These impacts can have differential adverse effects on low income populations or communities of color, creating environmental justice concerns that should be addressed in the plan and in any subsequent approved activities. Despite new data from the most reliable scientific sources, the Trump Administration’s energy dominance policy continues to prioritize fossil fuel production and expanded drilling on Federal lands.

The Draft RMPA/EIS must fully acknowledge and address the role of fossil fuel development on public lands, particularly in the context of developing additional lands within the Farmington Field Office, with associated GHG emissions that are driving climate change. BLM must also account for the potential loss of carbon storage in its RMP decisions, including analysis of impacts to carbon sequestration in the planning area from additional development, lack of protection for special designations, and increased vegetation removal.

BLM must ensure that the Farmington RMP Amendment addresses the climate crisis by reducing leasing and development, including through availability decisions, net zero carbon budget stipulations, and other protections described throughout these comments. Doing so will necessarily require at a minimum a supplemental EIS and more properly a full RMP revision, rather than the more limited amendment being contemplated. We hereby incorporate by reference technical comments submitted by Environmental Defense Fund et al. for the Farmington Draft RMPA/EIS, submitted September 25, 2020. These incorporated technical comments (attached) add context to several of our points below, further outlining BLM’s legal requirements to adequately consider climate change impacts throughout the ongoing Draft RMPA/EIS planning process.

B. BLM Must Fully Analyze the Impacts of Climate Change for this RMP Amendment Under the National Environmental Policy Act.

It is well established that federal agencies must analyze climate change when conducting land use planning. See, e.g., Wilderness Workshop v. Bureau of Land Mgmt., 342 F. Supp. 3d 1145, 1156 (D. Colo. 2018); W. Org. of Res. Councils v. Bureau of Land Mgmt., 2018 U.S. Dist. LEXIS 49635 at 53-54 (D. Mont., Mar. 26, 2018).

BLM must, at a minimum, conduct NEPA analysis for this RMP amendment that includes the components listed below. As it stands, the Draft RMPA/EIS fails to meet these requirements.

The Draft RMPA’s environmental consequences supplemental report qualitatively addresses nonmarket values, briefly stating that protecting LWCs would also protect nonmarket values. See 2020 Environmental Consequences Supplemental Report p. EC-74 and EC-68. This is not adequate analysis to inform or support management decisions in the RMP. BLM must complete a more robust analysis of nonmarket values, including specifically lands managed to protect wilderness characteristics.

BLM’s guidance directs the agency to analyze nonmarket values for each alternative and adopt management decisions that are informed by that analysis:

In framing information for management decisions, focus on the difference in changes to nonmarket values between action alternatives. Such information can highlight tradeoffs. For example, an alternative designating an additional thirty miles of trails for off-highway vehicles may increase the visitor days of use – therefore the total nonmarket benefits – from motorized recreation, but may decrease the benefits of subsistence hunting and watershed protection in this area. The difference between the changes to nonmarket values between this alternative and an alternative that, for example, only designates an additional ten miles of trails, can inform the choice among action alternatives.³³IM 2013-131, Attachment 1-5.

The guidance also directs that quantitative analysis of nonmarket values is strongly encouraged when “the alternatives to be considered present a strong contrast between extractive and nonextractive uses of land and resources. For example an RMP may include alternative resource allocations that vary between managing land primarily for oil and gas development or managing it for habitat conservation and recreation.”³⁴IM 2013-131, Attachment 1-7. Because the Farmington RMPA is evaluating a range of alternatives that has a development-focused alternative at one end of the spectrum and a conservation-focused alternative at the other, this criterion applies to the RMPA and BLM should conduct quantitative analysis of nonmarket values.

C. Requested management for lands with wilderness characteristics.

Manual 6320 requires BLM to consider lands with wilderness characteristics in land use planning, both in evaluating the impacts of management alternatives on lands with wilderness characteristics and in evaluating a range of alternatives that would protect those values. Examples of management prescriptions that will most effectively protect lands with wilderness characteristics in the Farmington RMP planning area include, but are not limited to, the following:

● Recommend withdrawal from mineral entry;
● Close to leasing or allow leasing only with no surface occupancy with no exceptions, waivers, or modifications;
● Designate as right-of-way exclusion areas;
● Close to construction of new roads;
● Designate as closed to motor vehicle use, as limited to motor vehicle use on designated routes, or as limited to mechanized use on designated routes;
● Close to mineral material sales;
● Designate as Visual Resource Management Class I or II;
● Restrict construction of new structures and facilities unrelated to the preservation or enhancement of wilderness characteristics or necessary for the management of uses allowed under the land use plan; and/or
● Retain public lands in federal ownership.

As it stands, the Draft RMPA/EIS only considers two alternatives, Alternatives A and B, that provide proper management of LWCs. The lands that BLM has identified to contain LWC comprise about 1.7% of the total managed surface lands within the field office. Given that 80 percent of the field office is already leased for oil and gas development, this tiny fraction of wilderness quality lands must be properly managed and maintained.

In contrast, BLM’s Preferred Alternative C would emphasize “other multiple uses as a priority over protecting wilderness characteristics.” First, we object to BLM using the term “other multiple uses” as a euphemism for fluid mineral leasing. As stated plainly in Chapter 1, page 1-1, of the document, the purpose of the Draft RMPA/EIS is “to examine changes in oil and gas (O/G) development patterns in the Mancos/Gallup formations, including innovations in horizontal drilling technology and multistage hydraulic fracturing.” In truth, “other multiple uses” in the context of this document refers primarily to oil and gas development – not recreation, grazing, timber harvesting, or other uses within the spectrum of BLM’s multiple use mandate. In effect and in fact, the preferred alternative prioritizes oil and gas development over the protection of wilderness characteristics; and BLM should state as much in its alternative description.

We also note with concern that BLM uses the same euphemism (“other multiple uses” when really referring to oil and gas development) in numerous other locations throughout the document. We urge BLM to be more straightforward in how it describes its relative priorities in the various management alternatives. In subsequent NEPA documents on this proposal, we request that BLM replace the term “other multiple uses” with the more accurate term “fluid mineral leasing and related operations and development” wherever it is applicable.

At a minimum, BLM should protect all units found by the agency to contain wilderness characteristics in the proposed RMPA. We urge BLM to modify its Preferred Alternative to include adequate protections, as described in Alternatives A and B, for the limited portions of the BLM decision area that are LWCs. In addition to these provisions, we request that BLM also establish an NSO stipulation for 0-3 miles around LWCs in order to minimize noise and visual impacts.

D. BLM fails to comply with FLPMA’s multiple-use and sustained yield mandate with respect to lands with wilderness characteristics.

BLM’s multiple use mandate indicates that BLM should protect all LWCs in the Farmington Field Office. FLPMA obligates the BLM to abide by the principles of multiple use and sustained yield, especially during the land use planning process. Multiple use is defined as:

the management of the public lands and their various resource values so that they are utilized in the combination that will best meet the present and future needs of the American people…the use of some land for less than all of the resources; a combination of balanced and diverse resource uses that takes into account the long- term needs of future generations for renewable and non-renewable resources, including, but not limited to, recreation, range, timber, minerals, watershed, wildlife and fish, and natural scenic, scientific and historical values; and harmonious and coordinated management of the various resources without permanent impairment of the productivity of the land and the quality of the environment with consideration being given to the relative values of the resources and not necessarily to the combination of uses that will give the greatest economic return or the greatest unit output.

43 U.S.C. § 1702(c) (emphasis added).

The definition of multiple use makes it clear that simply because a particular resource exists does not mean that the BLM needs to be able to extract that resource for a profit. It is well within the realm of BLM’s multiple use mandate to close a significant portion of the planning area to oil and gas leasing. The U.S. Court of Appeals for the 10th Circuit has reiterated this: “[i]t is past doubt that the principle of multiple use does not require BLM to prioritize development over other used.” New Mexico ex rel. Richardson, 565 F.3d at 710.

As noted above, FLPMA recognizes that “multiple use” of the public lands requires “a combination of balanced and diverse resource uses” that includes recreation, watershed, wildlife, fish, and natural scenic and historical values.” 43 U.S.C. 1702(c). FLPMA also requires BLM to prepare land use plans that may limit certain uses in some areas. Id.. § 1712. The BLM has a multiple use mandate and must manage its land for a variety of uses, not primarily for oil and gas development. Id.§ 1712(c)(1). Any decision which leaves the vast majority of the field office open to oil and gas development will preclude the effectiveness or long-term viability of any conservation measures as there is always the potential that those conservation measures could be jeopardized by oil and gas development, regardless of how low the potential for development is currently.

In the Farmington Field Office, approximately 80% of the planning area is open to leasing and is proposed to remain open to leasing in the preferred alternative of the Draft RMPA/EIS. The San Juan Basin is being developed extremely rapidly. We understand that BLM is facing enormous pressure to allow additional development, but we hope this pressure results in BLM taking its multiple use obligations more seriously than ever. The Farmington Field Office is running a serious risk of becoming a single-use field office, and this RMPA is a critical opportunity to preserve some of the last special ecosystems in northwestern New Mexico. BLM must comply with its legal obligations and consider meaningful protection of LWCs in the Draft RMPA/EIS. Even if BLM protected all agency-identified LWCs (24,300 acres) and citizen LWCs (about 23,500 acres) it would only be protecting approximately 3.4% of the field office for preservation of wilderness characteristics.

Recommendation: BLM must conduct more thorough analysis of the beneficial impacts of protecting LWCs on other resources, including a quantitative analysis of non-market values. BLM should protectively manage all inventoried LWCs in the planning area, in compliance with the agency’s multiple use mandate.

E. BLM must update its inventory for lands with wilderness characteristics.

1. BLM must include lands with wilderness characteristics inventory as part of this planning process.

FLPMA requires BLM to inventory and consider LWCs during the land use planning process. 43 U.S.C. § 1711(a); see also Ore. Natural Desert Ass’n v. BLM, 625 F.3d 1092 at (holding that “wilderness characteristics are among the values the FLPMA specifically assigns to the BLM to manage in land use plans). Instruction Memorandum (IM) 2011-154 directs BLM to consider LWC in land use plans and when analyzing projects under NEPA. The IM promulgates current agency policy for considering the wilderness characteristics on public lands as part of its multiple-use mandate in developing and revising land use plans and when making subsequent project level decisions, consistent with FLPMA. The IM directs BLM to “conduct and maintain inventories regarding the presence or absence of wilderness characteristics, and to consider identified LWCs in land use plans and when analyzing projects under [NEPA].” BLM Manual 6310 instructs BLM how to conduct LWCs inventories in compliance with FLPMA and agency policy. Manual 6320 requires BLM to consider LWCs in land use planning, both in evaluating the impacts of management alternatives on LWCs and in evaluating alternatives that would protect those values. The Draft RMPA/EIS fails to adequately analyze or protect LWCs.

The Farmington Field Office conducted an updated inventory for lands with wilderness characteristics as part of this amendment. The Field Office’s previous inventory had not been updated since 1986. As such, the Draft RMPA/EIS reassessed all existing units established in 1986, including a new route and right of way analysis, GIS and field review, and boundary corrections. In all, BLM inventoried 25 units covering 225,500 acres. Of these, BLM found four units covering 25,000 acres to contain wilderness characteristics. Since this inventory, one unit, covering 700 acres, has become part of the Bisti De Na Zin wilderness area. BLM has carried forward 24,300 acres as their inventory pursuant to this Draft RMPA/EIS. In general, we agree with BLM’s assessment of the three LWC units listed below. We would like to see proper management for these units incorporated into the Draft RMPA/EIS.

a. Unit NM-210-069 / Crow Mesa – Partial Unit

This unit’s configuration allows for a probable chance of a visitor being able to find seclusion. In some areas the unit extends for over 4 miles of contiguous undeveloped public lands. The varied topography within canyons in between mesas offers excellent opportunities to escape the sights and sounds of other visitors in the area. Given the configuration and topographic variation, the ability for visitors to find seclusion and avoid contact with the sights and sounds of other visitors are outstanding.

Canyons throughout the unit offer outstanding opportunities for primitive recreation, especially hiking and backpacking. Camping could be limited due to the lack of developed potable water sources for humans in the region. Horseback riding would be excellent through the canyons, but may be limited when crossing between canyons given the ruggedness of some peaks. During certain times of the year, intermittent flow in streams throughout the unit could provide a water source for horses while visitors travel through the unit.

The Special Designation Area, Crow Mesa, overlaps the eastern portion of the unit. The goal for the Crow Mesa Wildlife Area is to focus on protecting big game and their habitat. Visitors have unique opportunities to view and photograph big game such as Elk and Mule Deer and migratory birds including the Pinion Jay. Also, the Pretty Woman Cultural site is just north of the Crow Mesa SDA in the eastern portion of the unit and is delineated as an 84-acre parcel. This area is closed to OHV use and provides a unique historical and cultural value for visitors of the unit.

The canyons scattered throughout the unit would provide excellent opportunities for visitors to seclude themselves and present an exceptional challenge to hikers and backpackers visiting the unit. Special designation areas such as Crow Mesa and Pretty Woman cultural site provide supplemental scenic and historical values to visitors of the unit. Overall, this unit possesses a high degree of naturalness and is untrammeled by the works of man.

b. Unit NM-210-075

The Fossil Forest Research Natural Area (RNA) is located in the eastern portion of the unit, encompassing approximately 2,800 acres. The Fossil Forest RNA is closed to OHV use. This portion of the unit resembles areas found within the Bisti/De-Na-Zin Wilderness which is to the north of this unit. The topography of the unit is mostly flat with gently sloping hills in the interior. Aerial imagery shows that the Fossil Forest portion of the unit offers more varied topography including craters, jagged hills, and rock formations. Vegetation is dominated by grass and shrub varieties. There are no active oil and gas operations in the unit. Overall, the unit appears to have been affected primarily by the forces of nature.

While much of the area is topographically flat and wouldn’t offer much opportunity for solitude, the varied topography of interior areas would offer areas of seclusion. Because of its remoteness and lack of developments, evidence of other visitors would be unlikely in this unit.

This unit (particularly the interior areas) offers outstanding opportunities for backpacking, wildlife observation, and sightseeing for geological and paleontological resources.

2,800 acres of the unit are within the Fossil Forest Research Natural Area. This area contains paleontological and geological resources.

The interior portions of this unit offer outstanding opportunities for solitude. Backpacking and geological observation opportunities are also abundant in these interior areas. The unit is void of any human developments. The unit appears to have been affected primarily by the forces of nature. The supplemental values offered by the Fossil Forest RNA within the unit are also significant.

c. Unit NM-210-082 / Chacra Mesa

Opportunities for solitude within this unit are abundant. Because the unit receives minimal visitation, it is unlikely that a visitor would encounter another visitor; no one was encountered during the inventory. Once a visitor is within the unit, evidence of other people is rarely apparent; oil and gas activities are not visible or audible. Solitude can be found atop the mesa and solitude is likely even more possible when venturing into the valley and canyon areas of the unit. The unit is open to the public but visitation to the unit is minimal. Activities within the unit are consistent with wilderness values, including primitive hunting and wood gathering. The area offers significant opportunities for backpacking (much of the area is inaccessible from primitive routes), photography, and bird watching.

The entire unit is part of the Chacra Mesa Complex ACEC as a significant cultural site (Anasazi community). Several cultural sites are found within this unit, including a site known as Reservoir Ruin. This site is from approximately 1100-1300AD and is 95% intact. The area likely offered a strategic vantage point and including several prehistoric features including: a two-story structure with some modern stabilization for preservation purposes; a midden (trash mound) that includes pottery shards and leftover masonry; two kivas (ceremonial sites) including a large great kiva or possible reservoir; a prehistoric trail/road. Very little study has been done on this area; educational opportunities are significant.

This unit appears to be affected primarily by the forces of nature. Routes within this unit are primitive and no extractive activities occur within the unit. Opportunities for solitude and primitive and unconfined recreation are abundant. The unit includes significant cultural sites, many of which have not yet been extensively surveyed.

2. BLM failed to adequately respond to lands with wilderness characteristics inventory information submitted by the public.

BLM Manual 6310 states that BLM must review inventory information from external parties documenting LWCs when it includes:

· A map of sufficient detail to determine specific boundaries of the area in question;
· A detailed narrative that describes the wilderness characteristics of the area and documents how that information substantially differs from the information in the BLM inventory of the area’s wilderness characteristics; and
· Photographic documentation.³⁵BLM Manual 6310 at .06(B)((1)(b).

When BLM receives information that meets these minimum standards, the agency is directed to review the information “as soon as practicable,” “make the findings available to the public,” and “retain a record of the evaluation and the findings as evidence of the BLM’s consideration.”³⁶Id. at .06(B)(2).

In 2015, New Mexico Wilderness Alliance conducted its own inventory of BLM land within the planning area which was not already included in BLM’s internal inventory. The organization submitted data on 7 units totaling approximately 43,471 acres to BLM on March 20th, 2015. For each unit, the submission included photographs, a map, and a written narrative describing how the unit met the wilderness characteristics criteria.

BLM has repeatedly acknowledged receipt of inventory submitted by the New Mexico Wilderness Alliance, the Draft RMPA/EIS does not reflect a substantial portion of this inventory. Out of 7 submitted units, only a portion of one, the Crow Mesa unit, is specifically addressed in the Draft RMPA/EIS. The New Mexico Wilderness Alliance inventory constitutes significant new information that must be considered in the RMPA. In accordance with FLPMA, as well as the requirements of BLM Manuals 6310 and 6320, BLM must analyze the inventory, provide a response and evaluate management alternatives prior to issuing a Proposed RMPA/Final EIS so that the public can comment on this analysis.

Two areas, LWC3 and Ignacio Chavez are outside of the planning area, so it is reasonable for BLM to not include them in the current planning effort. Another area, the Ah-Shi-Sle-Pah addition was Congressionally designated prior to the publication of the Draft RMPA/EIS. However, the remaining four areas are largely unaccounted for. We encourage the BLM to include the remaining four areas in the proposed RMPA: Bisti Wilderness Area addition, LWC 2, Split Lip Flats, and the entirety of the Crow Mesa unit. We recognize and appreciate that the BLM has inventoried areas not included in the New Mexico Wilderness Alliance citizen proposal and encourage the agency to carry these areas into the proposed RMPA as well.

BLM’s decision to ignore public input on affected wilderness resources contravenes the “hard look” requirement of NEPA. See 42 U.S.C. § 4332(2)(C). Numerous courts have applied the hard look mandate to overturn agency decisions that ignored substantive, relevant wilderness information provided by the public, including citizen-submitted wilderness inventories. See, e.g., Or. Natural Desert Ass’n v. Rasmussen, 451 F. Supp. 2d 1202, 1211-13 (D. Ore. 2006) (holding that BLM violated the hard look requirement of NEPA when it dismissed a citizen-submitted inventory “[w]ith a broad brush”); SUWA v. Norton, 457 F. Supp. 2d 1253, 1263-65 (D. Utah 2006) (“…Utah BLM ignored significant new information…information provided by the Southern Utah Wilderness Alliance…presented a textbook example of significant new information about the affected environment (the wilderness attributes and characteristics…)”); Biodiversity Conservation Alliance, 183 IBLA 97, 2013 IBLA Lexis *1, *28-*29 (2013) (rejecting a claim that BLM violated the hard look requirement where BLM “specifically evaluated citizens’ wilderness proposals [so that the citizens’ proposals had] become administratively final…”).

The MLA also requires the Secretary of the Interior to include provisions for lease sales that he/she deems, “necessary to insure the sale of the production of such leased lands to the United States and to the public at reasonable prices, for the protection of the interests of the United States, for the prevention of monopoly, and for the safeguarding of the public welfare.”³⁷New York University School of Law; Institute for Policy Integrity, Look Before You Lease; Reducing Fossil Fuel Dominance on Public Lands by Accounting for Option Value at 6 (2020).

Rick Cerwick Chairman
Public Lands Committee, Izaak Walton League

Ernie Atencio
Southwest Regional Director
National Parks Conservation Association
PO Box 537
Arroyo Hondo, NM

Philip A. Francis, Jr., Chair
Coalition to Protect America’s National Parks

Mary Greene
Public Lands Attorney

National Wildlife Federation
303 E 17th Ave, Suite 210
Denver, Colorado 80203

Judy Calman
Director of Policy
Audubon New Mexico
400 Gold Ave SW #660
Albuquerque, NM 87102

Nada Culver
Vice President, Public Lands and Senior Policy Counsel National Audubon Society
1580 Lincoln Street, Suite 1280
Denver, CO 80203

Michael Casaus
New Mexico State Director
The Wilderness Society
317 Commercial Street NE
Albuquerque, NM 87102

Paul Reed
Preservation Archaeologist / Chaco Scholar Archaeology Southwest

Jesse Deubel
Executive Director
New Mexico Wildlife Federation
6100 Seagull St. NE, Suite B-105
Albuquerque, NM 87109

New Mexico Wilderness Alliance

The United States Committee for the International Council on Monuments and Sites

National Trust for Historic Preservation