Brief filed in HD Mountains lawsuit

A year-old lawsuit intended to protect some 27,000 acres of pristine roadless area west of Pagosa Springs moved forward last month, as plaintiffs filed an opening brief in U.S. District Court for the District of Colorado. Defendants now have until Feb. 13 to respond, while a final court decree could yet be months away.

On Jan. 23 of last year, Earthjustice attorney Edward Zukoski filed the suit on behalf of San Juan Citizen’s Alliance, Colorado Environmental Coalition, Colorado Wild, Oil and Gas Accountability Project and the Wilderness Society. The action challenges the 2007 San Juan Public Lands Center authorization for 27 new coal bed methane gas wells and 11 miles of new roads in the HD Mountains roadless area on either side of the Archuleta/La Plata county line.

Defendants include the U.S. Forest Service, the U.S. Bureau of Land Management, assorted federal officials and various energy companies and consultants, including BP America Production Company, Elm Ridge Exploration Company LLC, Exok Inc., Petrox Resources Inc. and XTO Energy Inc.

Plaintiffs claim the Forest Service and BLM decision to approve new drilling violates the requirements of the current San Juan National Forest management plan to protect old-growth forest, wildlife habitat, water quality and riparian areas. They also believe drilling will worsen the region’s ozone pollution and negatively impact air quality in Mesa Verde National Park and the Weminuche Wilderness.

Collectively, the environmental groups have described the entire 125,000-acre HDs project area as critical winter wildlife habitat, rich in old growth ponderosa pine forests, home to delicate watersheds and key to protecting the integrity of springs and seeps in the territory. While straddling the county line, the project area extends southeast of Durango to the Piedra River, and north of the Southern Ute Reservation boundary.

“The HD Mountains are the last tiny, little corner of the San Juan Basin not yet drilled for natural gas development,” said Jim Fitzgerald, who farms on 320 acres adjacent to the HD Mountains. “We rely on the undisturbed watersheds of the HD Mountains for our irrigation water and for keeping our farms healthy and productive.”

Fitzgerald and neighboring residents clearly oppose drilling — not only for its perceived threat to majestic stands of old-growth forests and the abundant wildlife dependant upon them — but also out of concern for the health and safety of their homes and families. According to plaintiffs’ claims, the Forest Service’s preferred alternative (to allow drilling) waives a long-standing health and safety regulation that bans drilling along the outcrop of the coal-bearing Fruitland Formation where coal bed methane is apparently found.

On the other hand, La Plata Energy Council spokeswoman Christi Zeller doesn’t understand what prompted the plaintiffs’ litigation.

“Frankly, I’m surprised they wanted to litigate — they appealed this in April and it was denied,” she said. “We believe that the Forest Service and the BLM considered the effects of drilling and made their decisions based on the public input — the final document had 400 mitigating measures — any one or all could be put on a well and that addresses cultural resources, natural resources and all of those concerns.”

The appeal Zeller referred to was a May 2007 plea by the environmental groups, Archuleta and La Plata county commissioners and others, to the April 2007 Forest Service Decision of Record, which authorized the drilling. The Forest Service rejected the appeal a few months later.

“Obviously, we’re pleased that we were upheld,” said San Juan National Forest Supervisor Mark Stiles, “but it was based on the record, and I think we tried our best over the last five years to do a thorough analysis of it. This was definitely a controversial issue, and we’ve been working with folks on their comments throughout, and I think the record reflected that pretty well.”

Aside from serving as forest supervisor, Stiles manages the BLM San Juan Public Lands Center and is among the federal officials named as defendants in the lawsuit.

In a recent phone interview, Earthjustice attorney Mike Freeman explained part of the plaintiffs’ reasoning behind continued litigation, saying, “We think the Forest Service violated its own forest management plan in a number of ways. The Forest Service has admitted that drilling will damage old growth forest, and erosion will likely affect watersheds and water quality. They admit the project did not conform with protections for wildlife habitat. Most of the drilling they want to do is slated for parts of the forest supposedly set aside for elk and mule deer winter range (according to the management plan).”

Meanwhile, according to Mark Pearson of the San Juan Citizen’s Alliance, the Forest Service has considered whether to recommend the area receive permanent protection as wilderness.

Moving forward, Freeman filed the plaintiffs’ initial brief Dec. 17. As a 66-page document, it details the plaintiffs’ aforementioned concerns, and asks the court to “declare that the Federal Defendants violated, and continue to violate NFMA (National Forest Management Act) and NEPA (National Environmental Policy Act) by authorizing and implementing the Project; order that the Project Record of Decision and all SUPOs, drilling permits and other approvals implementing it be vacated; enjoin the Federal Defendants from approving and proceeding with any aspect of the Project until they completely comply with NFMA and NEPA; and provide such other relief as the Court deems just and proper.”

Defendants have until Feb. 13 to file a responding brief, before plaintiffs file a reply brief by March 6. At some point, Senior Judge Richard P. Matsch will decide whether to hear oral arguments or rule on the case, based on submitted briefs.

Depending on the initial outcome, the decision could be appealed to the 10th Circuit Court of Appeals and from there, to the Colorado Supreme Court.

In the meantime, there are no injunctions against drilling or road building, as the matter is decided in court. However, winter weather has temporarily halted activity, at least until May.

chuck@pagosasun.com