Going to the Birds

An evidentiary hearing in the state's lawsuit against the Bureau of Land Management over its oil and gas drilling plans for Otero Mesa took a closer look at the federal agency's provisions to protect the aplomado falcon.

An evidentiary hearing in the state's lawsuit against the Bureau of Land Management over its oil and gas drilling plans for Otero Mesa took a closer look at the federal agency's provisions to protect the aplomado falcon.

U.S. District Court Judge Bruce D. Black held Wednesday's hearing to examine whether the BLM consulted and planned adequately for the impact their plans could have on the raptor's habitat.

The aplomado falcon once populated a broad band of desert land from southeastern Arizona through southern Texas, but its numbers dwindled and it nearly vanished after the 1930s. The U.S. Fish and Wildlife Service declared the northern aplomado falcon an endangered species in 1986, and 20 years later falcon sightings remain rare.

There were 23 reported sightings in New Mexico between 2005 and 2006, with six in the vicinity of Otero Mesa.

In June 2003, when the BLM was still evaluating its options for oil and gas development on the stretch of Chihuahuan Desert grassland, it said it needed to consult formally with the Fish and Wildlife Service because drilling was ''likely to adversely affect'' the bird of prey.

In September of the same year, the agency reversed that opinion.

Andrew Smith, a U.S. Department of Justice attorney representing the BLM, has said the BLM did consult, albeit informally, with the Fish and Wildlife Service and that the few documented falcon sightings in the Otero Mesa area did not warrant changes to the BLM's contested plan.

The testimony of Joy Nicholopoulos, former head of ecological services for the Fish and Wildlife Service in New Mexico, confirmed his claims, and noted decision reversals are not unusual for federal agencies.

BLM spokesman Hans Stuart said the BLM anticipated a transient falcon population in the area and incorporated protective measures, including the provision of thousands of acres for falcon habitat. He claims the BLM has spent millions of dollars on habitat modeling.

"We take this responsibility very seriously," he said.

But Nathan Newcomer, a New Mexico Wilderness Alliance spokesman and an observer in Wednesday's hearing, says those acres won't do.

"They're scattered and not contiguous," he said. "Common sense tells you the birds won't just disappear when they cross (from a designated area into an undesignated area). They need contiguous acres to reproduce and thrive."

Stuart notes there are also falcon protections built into drilling protocols. The BLM plans to prohibit drilling during the falcon breeding season, he said, and to conduct raptor surveys prior to accepting any applications for permits to drill.

Black has yet to make a decision. His office told the Daily News he would take the hearing's finding "under advisement."

Both Newcomer and Stuart said they sensed Black would rule on the lawsuit in the coming weeks, but neither wished to speculate on the outcome.

"We don't want to go there," said Stuart. "We're just confident about our presentation ... we appreciate that he (Black) has the interest and wanted to know the details."

Smith, a U.S. Department of Justice attorney representing the BLM, has said the BLM did consult, albeit informally, with the U.S. Fish and Wildlife Service and that the few documented falcon sightings in the Otero Mesa area did not warrant changes to the BLM's contested plan. The testimony of Joy Nicholopoulos, former head of ecological services for the Fish and Wildlife Service in New Mexico, confirmed his claims, and described decision reversals as not unusual for federal agencies.