Birds and the Law

Birds are seldom in lawsuits.  Like trees and other manifestations of Nature, they are not allowed into our courtrooms.  Mostly this is the result of the mental divide in our culture between “us” and “them”; between humans and the rest of the world.  This humanoid illusion of separateness prevents our legal system from paying much attention to birds, except occasionally as metaphors.

But sometimes a bird can be a key part of a lawsuit.  So it was recently with the Northern Aplomado Falcon.

Our First Aplomado

The northern Chihuahuan Desert reaches into southern Texas and New Mexico.  One of the largest remaining, and relatively undisturbed, tracts of Chihuahuan land sits in the southern-most part of New Mexico and is known as Otero Mesa.  Today, thanks to the courage and stubbornness of cattle ranchers, it is mostly over-grazed scrubland; but, if humans would ignore it long enough, it would return to those thrilling days of yesteryear when it was a rich diverse desert.  And the perfect home for the Aplomado Falcon.

But underneath it lie pockets of natural gas which a human wants to drill and sell. He is a well-connected human too.  He is the Chairman of the New Mexico Republican Party.  In the past, Steven Griles, former number 2 man at the Department of the Interior and associate of Jack Abramoff, was his lobbyist.  (That was before Griles pleaded guilty to obstruction of justice and went to prison for lying about his conduct while at Interior.) The Department of Interior operates the Bureau of Land Management (BLM), which manages Otero Mesa and which granted the human drilling rights during the Bush Administration — while Griles worked at Interior and was doing favors for energy companies that contributed to Abramoff’s operations.  I don’t know if the drilling company on Otero Mesa made such contributions or not, but it got the permit from BLM anyway.

Otero Mesa

That decision landed the BLM in court.  Environmental groups sued, as did the State of New Mexico.  (Although it is a desert, a huge aquifer of drinkable water flows deep underneath Otero Mesa and natural gas and oil drilling operations can pollute underground water. New Mexico doesn’t have much water, so it tries to protect what it does have.  Besides, the well-connected oilman who got the permit to drill is a Republican and New Mexico’s governor was a Democrat.  Not that politics ever enters into land use decisions.)

A part of the lawsuit swirled around Northern Aplomado Falcons.  Northern Aplomados are an endangered species.  They live nowhere in the world except Chihuahuan Desert grassland.  Their habitat, both in the United States and Mexico has been carved up for the benefit of the human species with no regard for the bird.  Not long ago the only place in the United States where you had any chance at all of seeing one was the Laguna Atascosa Wildlife Refuge in South Texas where they were introduced in the 1980s.

Because the falcons are an endangered species, the job of protecting them in the United States falls to the Fish and Wildlife Service (FWS), another agency of the Department of Interior.  In Jume, 2003, the BLM concluded that allowing gas drilling on Otero Mesa would adversely affect the falcons.  That meant it had to bring in the FWS for a lengthy consultation process that might result in a conclusion that the drilling should not happen.  Three months later, BLM reversed itself and decided that drilling would not hurt the falcons. That same decision also doubled, to 600,000 acres, the land available for drilling.  Mr. Griles was still number two at Interior.  (He resigned on December 7, 2004. After that he returned to lobbying until early 2007.)

In 2006, the FWS decided to attempt reintroducing the falcon to Otero Mesa and changed the bird’s status from “endangered” to “experimental.”  That decision effectively ended the environmentalists claim that BLM illegally ignored the falcon when it granted the drilling permits.  (Another lawsuit is pending about that decision.)[1]

A Reintroduced Juvenile Aplomado Meets Raven

But, on the other hand, the FWS gave The Peregrine Fund almost $300,000 to attempt to bring the Northern Aplomado back.  As of this writing about 100 have been reintroduced and at least 50 have achieved independence and may reproduce.

Last month the federal Tenth Circuit Court of Appeals ruled that the BLM acted illegally when it approved the drilling. Now, the agency must start over and comply with environmental laws if it wants to approve drilling on Otero Mesa.

It’s a double win for the Northern Aplomado Falcons; 100 more of them now live on the mesa or in its vicinity and — for the moment, at least — nobody is drilling for natural gas or oil.

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[1] Forgive me a personal aside. Some years ago, before the reintroduction program started, I traveled with a backpacking buddy to Otero Mesa. At that time, I had never seen an Aplomado. Before we went, we stopped by the local BLM office to get a map and talk with the BLM officer overseeing Otero Mesa. He was friendly and helpful as he showed us the places where we were allowed to camp and which roads were passable and which not. (Otero Mesa is largely roadless but is intersected by a few dirt roads.) He became much less helpful when I told him that I wanted to see an Aplomado. In fact, it was only in the face of my withering cross-examination that he even conceded one had been seen on the mesa. Finally he waved his finger at the map and said, “Maybe there.” I promised to call if we saw one. We didn’t. I suspected then and still suspect, that sightings of an endangered species were complicating the gas drilling lease.

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You can read the unanimous opinion of the Court here. Interestingly, the three judge panel consisted of one judge appointed by President Reagan, one by President Clinton and one by President George W.Bush.  The BLM, the wannabe driller, or the petroleum industry can ask the full court to hear the case and it also can petition the Supreme Court to hear it.

You can read more about the falcon and the experimental reintroduction program at this link:

“Aplomado Falcon Reintroductions”

Drilling for Oil

Green River Overlook - Canyonlands, Utah

According to the story in today’s Washington Post, a college student in Utah walked into a BLM auction for drilling rights on your land a couple of weeks ago, registered to bid in the auction, was given a paddle to raise to make a bid, and bought 22,000 acres of drilling rights on public land in Southeast Utah.  Not only did he win the rights to drill on 22,000 acres, he bid up the prices on others, forcing the oil companies to pay more than they wanted. This caused such consternation among the oil men and the BLM bureaucrats in the room that federal agents were summoned to remove the student from the room.  Now they are threatening him with prosecution.

In the past eight years the administration has sold — at prices laughably below market value — 35,000 such permits, allowing oil companies to drill on your land.

The student does not have the $1.8 million dollars to pay for the drilling rights, but he does have, thanks to the internet, the $45,000 necessary for the first payment.  When word of his bid got out, an environmental web site was created so people could donate to the purchase price.  Already he has raised enough for the first payment of $45,000.00 from small contributions.  And who knows, he may soon have the entire purchase price donated by United States citizens, a/k/a the owners of the land.

Leaking Oil Rig Tank - Otero Mesa, NM

If he gets the money, an additional 22,000 acres will never have a drilling rig on it, will never have a road built for the rig, and will never have a waste dump next to each rig.  Animals and birds will be able to live out their lives undisturbed by giant machinery and the dust and erosion caused by hundreds of mammoth pick-ups speeding back and forth.
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For more on how the BLM bidding process works, here is a short, humorous primer entitled “This Land is Your Land.”

For more, especially on the reaction of people in the room at the time, see the New York Times article about the auction.

UPDATE – JANUARY 20, 2009

A federal judge last week, temporarily stopped the entire sale.  The BLM, which would have deposited the checks from the sale yesterday and made the sale final and binding, was restrained from depositing the checks until it redoes its Environmental Impact Statement.  Given the change in presidential administrations today, there is some chance the sale will never happen.  What that will mean for the young college student threatened with prosecution remains to be seen.

Displayers of the Purple Sage

The governor of Wyoming, unlike the federal government, is worried about the Greater Sage-grouse.  The mad dash to sell and lease the West to the oil and gas companies, frenetic for the last seven years, has reached an even more frenzied state as the Bush Administration winds down.

Lewis and Clark wrote about the Sage-grouse in 1805, back when it was abundant on western prairies.  That was before conversion of the prairie to agricultural uses and mineral extraction.  Millions of acres were stripped in order to grow wheat and potatoes. Millions more were stripped to make the land safe for cattle.  Sagebrush, almost as nutritious as alfalfa, contains toxins which kill bacteria in the stomachs of cows which can result in death. Cattle, unlike Pronghorn Antelope, did not co-evolve with sagebrush.  Antelope thrive on it.  Their ancestral range shrunk along with that of the Sage grouse and Native Americans who used sagebrush to stop internal bleeding and to rid themselves of internal parasites.

Cities required yet more sagebrush land.  As a result of all this human activity, sagebrush is dying and so is the Sage-grouse.  We’ve denuded an area the size of Europe of its natural cover.  If he were writing today Zane Grey would name his most famous novel, Riders of the Long Gone Sage.  What little sagebrush habitat is left overlies deposits of natural gas and oil.  Exploration, drilling and extraction disrupt the habitat and its occupants even more.

Sagebrush

The Greater Sage-grouse is the largest North American grouse and is famous for the mating displays of the males.  When the spring mating season comes, their esophagi enlarge as much as 50 times, apparently the result of large doses of testosterone.  They expand and collapse their esophagi pouches making noise to attract females.  The males gather on breeding grounds known as leks to strut their stuff as you can see in this video.

The females wander through the leks and select males.  Actually they select very few males.  In one study two males copulated with 76% of the available females.  Because mating, a cloacal kiss, takes only few seconds, males may mate as many as 20 times a morning. One male was caught by a scientist copulating 169 times in one season.  Less successful males hang around, apparently hoping that the successful males will tire, leading other females to select them.  (“The spillover effect,” according to one scientist.)

Mostly this activity occurs around sunrise during springtime.  Golden Eagles learned about this.  Now they wait, up in the eastern sky for the strutting to begin then swoop down out of the sun attempting to grab a bird. The most successful males are in the most danger because they keep strutting after the other males and females have gone to ground.  A little testosterone is a good thing; a lot of it can get you in trouble.

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The film and the photos, except for the last one, come from Dr. Gail Patricelli of UC Davis.  You can read more about Greater Sage-grouse at this Audubon site.  If you want to weigh in on habitat protection the Audubon Society has a form letter you can send to the BLM, although it is always better to write your own.

Teshekpuk Lake, Oil and Gas, and the BLM

We blogged last week about Teshekpuk Lake in the Arctic. Now comes the news that the public comment period on the BLM’s latest attempt to open the area for oil and gas exploration is about to expire.

Here is an explanation of the plan and what you can do to help protect the Lake, if you are so inclined. The draft letter suggested by the Audubon Society is pretty good but remember to re-write it so it isn’t just a cookie-cutter letter. The geese and loons will thank you for your effort.