NEW MEXICO WILDERNESS ALLIANCE * NATIONAL
PARKS CONSERVATION ASSOCIATION * THE WILDERNESS
SOCIETY
December 22, 2016
Via Overnight Mail
Ms. Amy Lueders, State Director
New Mexico BLM State Office
301 Dinosaur Trail
Santa Fe, NM 87508
Re: Request for State Director Review of the Hayhurst Master Development Plan and Stay
of Operations Pending Final Decision. Oral Presentation Requested.
Dear Ms. Lueders:
The New Mexico Wilderness Alliance (NMWA), National Parks Conservation
Association (NPCA), and The Wilderness Society (TWS) hereby request your review of the
decision by the Carlsbad Field Office of the Bureau of Land Management (BLM) that approved
the above oil and natural gas development project, which includes the Hayhurst Master
Development Plan (MDP) and twelve applications for permit to drill (APD). We make this
request pursuant to the provisions at 43 C.F.R. § 3165.3(b); and also request a stay of the
operations approved by the Hayhurst MDP, based on meeting the criteria set out at 43 C.F.R. §
3165.3(c). We are bringing this request for state director review of the Hayhurst MDP based on
the order the Interior Board of Land Appeals (IBLA) issued on December 2, 2016 dismissing our
appeal challenging the project and remanding it for your review. As mentioned above, we also
request an oral presentation, as provided for by 43 C.F.R. § 3165.3(b).
Overview of Concerns Regarding the Hayhurst MDP
There are a number of aspects of the approved Hayhurst MDP and the supporting environmental
analysis that should be modified. These include:
1

 1. Concerns regarding the conditions of approval (COA) that would accompany
development pursuant to the MDP, including the twelve applications APDs that were
approved with the project: The COAs should be clearly incorporated into the MDP and
made part of it so there is a clear roadmap of mitigation measures that can be followed by
the operator, the BLM, and the public. The COAs are not currently clearly made part of
the MDP. Other concerns include:


There is a need for COAs that provide for protection of areas of critical
environmental concern (ACEC) in the area, protection of lands with wilderness
characteristics (LWC), and protection of values and resources in the nearby
Carlsbad Caverns National Park. These COAs must be explicitly incorporated
into the MDP. The absence of these COAs in an explicit fashion in the MDP
contributes to the failures to provide adequate public notice and information about
this project.



In addition to being added explicitly to the MDP, the COAs should also be made
part of any APDs that are approved for this project, and these APDs should be
publicly available.1



While COAs may be site-specific, the BLM nevertheless can provide information
about what conditions will apply under various circumstances.



There is a need to ensure the mitigation provided by the COAs is effective. There
is a need to protect resources and ensure mitigation succeeds. Currently the
Hayhurst environmental assessment (EA) as well as the Decision Record and

1

While Appendix A in the Hayhurst Environmental Assessment addresses the twelve APDs that were filed, COAs
are not shown there, either.

2

 Finding of No Significant Impact (FONSI) for this project do not explain how
mitigation will succeed if certain conditions are met.


Incorporating COAs into the MDP would track the model the BLM has been
using for other master development plans, such as the Bull Mountain Master
Development Plan in Colorado2, and for Master Leasing Plans, such as the justapproved Moab MLP in Utah3.

2. There is a need to address the effects of MDP decisions on alternatives that might be
considered in the pending revision of the Carlsbad Field Office Resource Management
Plan (RMP). Particularly, MDP decisions could negatively impact consideration and
designation of potential and existing ACECs under the revised RMP, as well as
management of wilderness characteristics in LWC.
3. Under the BLM Manual (BLM Manual 1613), there is a requirement to provide interim
protective measures to protect the relevant and important values that make areas qualified
for consideration as ACECs pending the development of a revised RMP. Currently no
interim protective management is specified for the potential ACECs BLM has
acknowledged as meeting relevant criteria in the MDP area.
4. The BLM has only prepared an EA evaluating the environmental impacts of the Hayhurst
MDP but there is a need to develop an environmental impact statement (EIS) that more
fully considers these impacts. Needs in this regard include:

2

https://www.blm.gov/style/medialib/blm/co/information/nepa/uncompahgre_field/fy2015_nepa_docs.Par.34704.File
.dat/Bull_Mtn_Final_EIS_July_2016_Vol_II_508_reduced.pdf
3
https://eplanning.blm.gov/epl-front-office/projects/lup/68430/92959/111979/09_Moab_MLP_ROD_AppendixB_Best_Management_Practices_Web.pdf

3

 

The evaluation under the National Environmental Policy Act (NEPA) needs to
explicitly address how the COAs that will be required for the MDP and APDs
approved under it will mitigate environmental impacts. In particular, there is a
need for greater consideration of concerns and issues related to impacts on
potential and existing ACECs in the area and to impacts to Carlsbad Caverns
National Park.



There is a need for enhanced and improved opportunities for informed public
participation in these NEPA analyses.

5. In 2011, the BLM entered into a memorandum of understanding (MOU) with the
Environmental Protection Agency (EPA) as well as the National Park Service (NPS)
regarding NEPA analysis requirements for oil and gas projects with respect to impacts on
air quality. The BLM needs to ensure more complete and thorough compliance with this
MOU than has been evident to date. It is available at https://www.epa.gov/
sites/production/files/2014-08/documents/air-quality-analyses-mou-2011.pdf.
6. The BLM needs to commit to providing notice to interested stakeholders and parties
regarding this MDP before more actions are taken that permit development, including
providing documents on its websites in a timely and reliable manner.


In addition, there is a specific need to take further actions to engage the NPS with
sufficient time for review and concurrence before actions are approved.
Background

The Hayhurst MDP would be a significant oil and natural gas development project
located in Eddy County, New Mexico. The project is proposed by Chevron U.S.A., Inc. It is

4

 located in the BLM Carlsbad Field Office. It would encompass 8,866 acres and permit drilling of
436 wells on 109 well pads. Twelve APDs were also approved when this MDP was adopted.
The decision approving this project was signed on October 7, 2016, by George
MacDonnell, Field Manager BLM Carlsbad Field Office (CFO). In this decision, the BLM
issued a Decision Record and FONSI regarding the Hayhurst MDP (DOI-BLM-NM-P020-20161434-EA). The Chevron U.S.A., Inc. Hayhurst Master Development Plan EA was also prepared
as part of the review of this project.
Significant environmental impacts could accompany development at this magnitude, and
thus we request your review of this project to ensure the requirements of NEPA and the Federal
Land Policy and Management Act (FLPMA) have been met. As discussed in the above section,
we do not believe this has occurred.
There are several significant environmental impacts relative to this project which we do
not believe have been adequately reviewed under NEPA and FLPMA. Two potential ACECs are
found in the MDP project area—the Carlsbad Chihuahuan Desert Rivers ACEC and the Gypsum
Soils ACEC – as well as two existing ACECs – Chosa Draw and Yeso-Hills. The relevant and
important and important values of these areas making them eligible for ACEC designation have
not been adequately protected under the Hayhurst EA, Decision Record, or FONSI.
Moreover, this project is located near Carlsbad Caverns National Park. The potential for
significant impacts to the Park have been documented by the NPS and include increased air
pollution and impacts to dark, nighttime skies due to lighting in the MDP area. The BLM has
also failed to comply with the existing MOU with the EPA and the NPS relative to NEPA
compliance for air pollution resulting from oil and gas development projects.

5

 A proposed LWC unit is also found in this project area and would be inadequately
protected under the decision for this project.
These issues were raised in the appeal we filed with the IBLA, as was the basis for a stay
of implementing the CFO’s approval of the Hayhurst MDP and APDs (although IBLA dismissed
the appeal because it did not view this matter as subject to its review prior to completion of state
director review). We have enclosed a copy of that appeal, including the numerous exhibits, and
ask that they be fully considered and made part of this request for state director review. In
particular, we direct your attention to the in-depth discussion of the harm that will occur to our
interests and the affected natural and cultural resources from the commitments made in the MDP
if it is implemented. These harms and the interests of all parties justify a stay pursuant to
regulatory standards; the discussion in the attached Petition for Stay and in this filing also justify
a stay in operations under the MDP pending the completion of this state director review process.
We will also discuss the flaws in BLM’s analysis below, along with proposed remedies.
Environmental Impacts of the Hayhurst MDP
The Chihuahuan Desert Rivers ACEC
In 2010, as part of the scoping process for the revision of the Carlsbad Field Office RMP,
NMWA submitted a nomination for the “Chihuahuan Desert Rivers Area of Critical
Environmental Concern.” It proposed consideration of approximately 137,000 acres to be
managed specifically with protection of the area’s rivers in mind. The ACEC nomination
contains two pristine rivers in the middle of the desert (the Delaware and the Black) and is
immediately adjacent to a third, the Pecos. The Delaware is home to at least 20 BLM sensitive
species as well as several endangered plants and invertebrates. It has been designated an
Important Birding Area by the Audubon Society because of its importance as a rest stop for

6

 migrating birds, and is truly an oasis in an otherwise industrial zone. The area is also home to
numerous archeological and paleontological sites, including the site of the discovery of a
mammoth tusk in 1999, stops on the Butterfield Stagecoach Trail, and sites from Captain John
Pope's excursion to find a route for the transcontinental railroad. The Delaware River area has
been nominated for the National Register of Historic Places. In its nomination of the ACEC,
NMWA notified the CFO of its responsibility to use interim management for potential ACECs to
protect the area’s relevant and important values until a planning process is completed.
As part of the nomination process, NMWA had at least ten in-person meetings with CFO,
which encouraged NMWA to expand and alter the proposal in various ways. As part of its
February 2012 Special Designations, Travel Management, and Visual Resource Management
Public Workshops, BLM announced that the proposed Carlsbad Chihuahuan Desert Rivers
ACEC met the required relevance and importance criteria and would be carried forward into
analysis in the Draft RMP. The proposed Carlsbad Chihuahuan Desert Rivers ACEC is within
the Hayhurst MDP project area and the EA area of analysis. Hayhurst EA, Figure 3.15-1, p. 3-77.
The potential impacts from the activities proposed in the Hayhurst MDP and authorized
for the twelve approved APDs are very important in the context of the relevant and important
values identified in the proposed Chihuahuan Desert Rivers ACEC. The impacts of the proposed
development are of high intensity/severity due to the large number of new wells and well pads
being authorized and the area’s unique natural characteristics. By approving the MDP and APDs
without specific conditions of approval or placeholders for future conditions, BLM is
relinquishing the opportunity to evaluate and impose COAs in these APDs or possibly on future
APDs, foreclosing alternatives that would protect the ACEC values.
The Gypsum Soils ACEC

7

 The second ACEC found in the Hayhurst MDP area is the Gypsum Soils proposed
ACEC, which BLM internally nominated.
. . . due to the presence of fragile microbiotic soil crust, high erosion potential when the
crust is disturbed, and poor revegetation potential. These soils tend to be located along
the banks and sidewalls of draws and in drainage bottoms. The BLM CFO has identified
the Southern Gypsum Soil Area. This 62,800-acre area is characterized by gypsum soils
with low organic matter content, sparse vegetation, rapid to very rapid runoff, very low to
low water-holding capacity, and high salinity that limits plant rooting. These soils are
also subject to severe erosion if the vegetative cover is lost (BLM 2014a). Within this
area, some off-road travel activities are restricted, but no specific management
designations have been prescribed (BLM 1988).

Hayhurst EA, p. 3-26 (emphasis added).
As part of its February 2012 Special Designations, Travel Management, and Visual
Resource Management Public Workshops, BLM announced that the Gypsum Soils ACEC met
the required relevance and importance criteria and would be carried forward into analysis in the
Draft RMP. The proposed Gypsum Soils ACEC is within the Hayhurst MDP project area and the
Hayhurst EA area of analysis. Hayhurst EA, Figure 3.15-1, p. 3-77.
The potential impacts from the activities proposed in the Hayhurst MDP and authorized
for the twelve approved APDs are significant in the context of the relevant and important values
identified in the proposed Gypsum Soils ACEC. The impacts of the proposed development are of
high intensity/severity due to the large number of new wells and well pads being authorized and
the area’s unique natural characteristics, including fragile soils.
The EA confirms that these resources are at risk from development of the MDP if it is
completed. For instance, with respect to soil, the Hayhurst EA states on page 3-26 that:
Soil map units CR, GC, and RG constitute the nominated Gypsum Soils Area of Critical
Environmental Concern (ACEC) due to the presence of fragile microbiotic soil crust,
high erosion potential when the crust is disturbed, and poor revegetation potential. These
soils tend to be located along the banks and sidewalls of draws and in drainage bottoms.
The BLM CFO has identified the Southern Gypsum Soil Area. This 62,800-acre area is
8

 characterized by gypsum soils with low organic matter content, sparse vegetation, rapid
to very rapid runoff, very low to low water-holding capacity, and high salinity that limits
plant rooting. These soils are also subject to severe erosion if the vegetative cover is lost .
. . . Construction-related impacts to soil resources may include compaction and
degradation of factors necessary to support vegetation. There is a potential for wind and
water erosion due to the erosive nature of some project area soils once the cover is lost,
particularly within gypsum type soils. Based on the layout of project components
presented in the MDP and APDs, approximately 530 acres of short-term impacts are
expected in soils within the Nominated Gypsum Soils ACEC, particularly the ReevesGypsum land complex. Approximately 63 acres of short-term disturbance would be in
soils with a severe water erosion hazard (i.e., Gypsum land-Cottonwood complex). Longterm impacts due to soil erosion could occur in areas where reclamation is difficult and
where establishment of vegetation takes longer than expected.

The EA also notes (on the same page) that these soils can take up to 250 years to recover.
Impact to Carlsbad Caverns National Park
The NPS submitted comments to CFO on August 29, 2016, opposing the approval of the
Hayhurst MDP. NPS highlighted a number of concerns, especially related to air quality and
impacts to night skies, due to the proximity of the project to the boundary of the National Park.
Carlsbad Caverns National Park is a Class I airshed under the Clean Air Act. Notably, NPS
concluded: “we do not believe the project impacts are congruent with the issuance of a Finding
of No Significant Impact.”
NPS identified “significant adverse impacts to the desert ecosystems in Carlsbad Caverns
NP due to excess nitrogen deposition” and “significant concerns regarding the cumulative
impacts to night skies.” NPS also cited broader concerns with impacts to visibility and that “very
little information regarding the visibility analysis methods for the Hayhurst project is provided in
the EA.”
Further, NPS pointed out the failure of the BLM to follow the collaborative process
outlined in the 2011 Air Quality MOU between BLM, the NPS, and the EPA. This MOU
specifically applies to NEPA analyses and mitigation for oil and gas decisions. While NPS noted
9

 that BLM’s “recent efforts are consistent with the goals of the MOU,” it also pointed out the
MOU commitments to convene a technical workgroup and engage in a collaborative process to
analyze and mitigate impacts “early in the planning process.”
In this context, CFO did not collaborate with NPS early in the process and did not fulfill
the other commitments for evaluating air quality impacts or designing mitigation measures. CFO
declined to prepare an EIS (over the objection of NPS) and apparently also declined to even
consider taking any of the actions identified in the MOU, such as developing and applying
mitigation measures and design features to “eliminate or reduce adverse impacts.”
The NPS comments conclude by reiterating the agency’s key concerns: “As stated
previously, we do not believe the air resource impacts from the proposed project are congruent
with the issuance of a FONSI. We also have significant concerns regarding the cumulative
impacts to night skies.” In the approved EA, there is no mention of NPS concerns or actions
taken to address them; for example, in the discussion of night skies, the EA only discusses the
manner in which the cumulative impacts to night skies are consistent with BLM’s Class IV
visual resource management classification. See, Hayhurst EA, p. 3-74.
The NPS concerns remained after the Hayhurst EA was completed and the MDP was
approved. In a second comment letter sent to the BLM on November 1, 2016, after the MDP was
approved, the NPS stated, “The mitigations described in the response to comments document . . .
are not incorporated as COAs into the Decision Record/Finding of No Significant Impact
(FONSI).” And while COAs were developed to reduce nitrogen deposition issues, the NPS still
“recommend[s] that a few changes to the COAs would ensure their effectiveness in addressing
any potential adverse effects on park resources from excessive nitrogen deposition.”4 This was

4

The COAs relative to air quality that BLM specifies follow below.

10

 because “nitrogen deposition in the park is predicted to exceed the NPS Deposition Analysis
Threshold . . . .” Therefore, the NPS recommended several revisions to the nitrogen oxide (NOX)
emissions caps for drilling and completion engines, and the emissions tracking mechanism
expressed in the COAs that had been adopted. A copy of this November 1, 2016, letter is
attached. Based on our review of the APDs approved with the MDP, it is clear that these
additional needed changes have not been adopted by the BLM, even though BLM claimed that it
was incorporating additional protections in its response to the NPS comments (Appendix F, pp.
3-7).
By approving the MDP, BLM has foreclosed opportunities to require phased
development in the context of protecting the resources of Carlsbad Caverns National Park, as

They say nothing about Carlsbad Caverns National Park resources at all and appear to be standard Pecos District
COAs that do not include avoidance and just provide some mitigation to limit harm. In the COAs we have seen for
this project shown in the APDs, the only COAs are the standard Pecos District COAs and the COAs for air quality
just presented. They do not include the changes the NPS recommended.

11

 proposed by the NPS. Similarly, approval of the MDP and APDs prevents BLM from evaluating
alternatives that would address cumulative impacts to night skies and desert ecosystems in the
Park. Accurately analyzing the impacts to Carlsbad Caverns National Park and developing
measures to limit harm to park resources is squarely in the public interest. The concerns
expressed by the NPS are concerns that we share.
Lands with Wilderness Characteristics
The identification and consideration for protection of LWC is one of the issues being
addressed in the Carlsbad Field Office RMP revision. LWC are roadless, generally 5,000 acres
or more, and exhibit naturalness and outstanding opportunities for solitude or primitive,
unconfined recreation. NMWA inventoried and identified lands with wilderness characteristics
in the Hayhurst MDP area; NMWA submitted this information to the CFO and it includes one
LWC unit within the MDP (the Delaware River unit, 6,276 acres). The map attached as Exhibit F
in the IBLA appeal shows LWC identified by NMWA and submitted to CFO. While wilderness
characteristics would clearly be impacted by the approved APDs and the other activities
contemplated by the MDP, this resource is not acknowledged nor are potential impacts analyzed
in the Hayhurst EA. Furthermore, while BLM notes in the Response to Comments that it decided
this unit does not have wilderness characteristics (Exhibit F, p. 7), the public has never been
given the opportunity to review BLM’s LWC inventory or comment on its conclusions.

12

 Lack of Compliance with NEPA and FLPMA
National Environmental Policy Act
NEPA requires agencies to take a “hard look” at the environmental impacts of proposed
projects and also requires that a reasonable range of alternatives be considered to achieve the
purposes of a project and the policies of NEPA. Where an EA rather than an environmental
impact statement (EIS) is used to consider impacts, the EA must “provide sufficient evidence
and analysis” to determine whether an EIS should be prepared or that a FONSI is appropriate,
and the EA must consider the environmental impacts of the proposed action and alternatives to it.
40 C.F.R. § 1508.9. A FONSI is only appropriate if a project “will not” have significant
environmental effects, and there are lengthy provisions governing how significance is to be
determined. 40 C.F.R. §§ 1508.13 and 1508.27. The Hayhurst MDP EA, Decision Record, and
FONSI have not met these requirements.
There would clearly be irreversible and irretrievable commitments of resources if the
Hayhurst MDP and the twelve APDs were developed. Under these circumstances there must be
adequate environmental review before a project can be approved. These potential impacts, which
were not fully considered in the Hayhurst EA, were mentioned above relative to the Chihuahuan
Desert Rivers ACEC, Gypsum Soils ACEC, Carlsbad Caverns National Park, and Land with
Wilderness Characteristics. The need to fully consider irreversible and irretrievable
commitments of resources when oil and gas resources are developed was made clear in New
Mexico ex rel. Bill Richardson v. BLM, 565 F.3d 683 (10th Cir. 2009) where the court required
supplemental NEPA analysis that considered closing a Chihuahuan Desert area to oil and gas
development.

13

 NEPA and BLM guidance documents require adequate analysis of site-specific impacts
as soon as potential impacts are “reasonably foreseeable.” See 40 C.F.R.§ 1502.22 (discussing
situations where there is incomplete or unavailable information). NEPA analyses must be
completed “at the earliest practicable point” and “before any irretrievable commitment of
resources” 42 U.S.C. § 4332(2)(C)(v); Pennaco Energy, Inc. v. U.S. Dep’t of Interior, 377 F.3d
1147, 1160 (10th Cir. 2004). The Tenth Circuit established that issuing a lease without a No
Surface Occupancy (NSO) stipulation, for example, constitutes an irretrievable commitment of
resources, and this necessitates preparation of an EIS. New Mexico, 565 F.3d. at 718. In this
instance, the CFO has approved twelve APDs, giving the MDP proponent the right to drill
twelve wells without adequately addressing the significant impacts to resources we and the NPS
have repeatedly identified; these APDs are a similarly irretrievable commitment of resources. As
noted by the NPS in its comments, “mitigation measures implemented to avoid significant
impacts are implemented at Conditions of Approval (COAs) through this EA and in subsequent
application for permits to drill (APDs).” The twelve APDs approved by CFO do not have the
mitigation measures proposed by the NPS and BLM cannot impose them now. Further, by
approving the MDP, BLM has foreclosed opportunities to require phased development in the
context of protecting the resources of Carlsbad Caverns National Park, as proposed by the NPS.
As discussed in our respective comment letters to CFO, an EIS is the only way CFO can
ensure an appropriate level of analysis and consider alternatives to minimize and mitigate
impacts to public lands resources. NEPA requires preparation of an EIS to evaluate the
environmental consequences of a proposed action when that action may significantly impact the
environment. 40 C.F.R. § 1501.4. The definition of “significantly” (set out at 40 C.F.R. §
1508.27) unquestionably requires preparation of an EIS when considering development of

14

 hundreds of new oil and gas wells in a potential ACEC and that would harm the resources of a
nearby national park. In addition, the development of hundreds of new wells in a small area
governed by an RMP that the BLM has acknowledged is out of date would still warrant an EIS
according to NEPA, making the preparation of an EIS even more critical in this instance. See
New Mexico, 565 F.3d at 694-95 (requiring preparation of a supplemental EIS where a single oil
and gas lease parcel was sold in a Chihuahuan Desert grassland under a plan that did not comply
with NEPA).
The potential impacts from the activities proposed in the Hayhurst MDP and authorized
for the twelve approved APDs are very important in the context of the relevant and important
values identified in the proposed Gypsum Soils ACEC and the proposed Chihuahuan Desert
Rivers ACEC. The impacts of the proposed development are of high intensity/severity due to the
large number of new wells and well pads being authorized and the areas’ unique natural
characteristics. Additionally, authorizing hundreds of new oil and gas wells is highly
controversial, as evidenced by the public comment and concern that has been generated around
oil and gas leasing and development on public lands. Further, BLM’s sister agency, the NPS, has
explicitly concluded that the impacts to the resources of Carlsbad Caverns National Park are
“significant,” as explicitly stated and repeated in the NPS comment letters.
We believe several critical factors require a much deeper analysis than what was present
in the Hayhurst EA. These include:
•
•
•
•

Impacts to the ecosystem night skies, and viewshed of Carlsbad Caverns National
Park,
Potential impacts to karst resources within the project area, especially to any
groundwater,
Impacts to threatened and endangered species, including impacts to the adjacent
riparian areas,
Impacts to all identified lands with wilderness characteristics,

15

 •
•

Impacts to the Delaware River area, which has been nominated for the National
Register of Historic Places, and
Impacts to ACEC resources especially the relevant and important values found in
these areas.
Moreover, an EIS is required in order to provide a current analysis of environmental

consequences and potential mitigation measures. The Hayhurst EA states that it is in
conformance with the 1997 Carlsbad RMP Amendment. But that plan does not reflect
information that has come to light or changes on the ground in the past two decades, including
scientific research, U.S. government commitments, and new policies regarding climate change,
which is partly why the RMP is currently being revised. An EIS would entail a more thorough
analysis of the potential environmental consequences of development in the Hay Hollow area
based on newly-discovered information as well as suitable mitigation measures. There is a
wealth of new information and changed circumstances regarding both oil and gas development
and protection of other resources both in the project area and affecting CFO’s management
decisions in the context of the broader RMP revision that require the preparation of an EIS.
Council on Environmental Quality (CEQ) guidance states that an EA should generally be
in the 10-15 page range, and that a lengthy EA, while occasionally appropriate, generally means
that an EIS is needed. We would note that the CEQ regulations are to receive “substantial
deference” and even the Forty Most Asked Questions guidance is “persuasive authority.” New
Mexico, 565 F.3d at 703, 705. Here, the Hayhurst EA is 634 pages, far beyond what we believe
is an appropriate stretch of the guidelines. Additionally, we found many examples of EISs being
prepared for MDPs which are much smaller than the Hayhurst MDP project and which do not
have active conservation proposals on them5, indicating it is common practice to prepare EISs

5

See Bull Mountain Unit MDP EIS (146 wells, July 2016, Uncompahgre Field Office in Colorado, available at
https://www.blm.gov/co/st/eonn/BLM_Information/nepa/ufo/Bull_Mountain_EIS.html). See also Eagle Prospect
and Noble Basin MDP (133 wells, 2010, Bridger-Teton National Forest in Wyoming).

16

 for similar, and even much smaller projects.
The Bull Mountain MDP EIS provides important insight about what should be included
in a Hayhurst MDP EIS. The BLM originally prepared an EA for Bull Mountain but then
decided to prepare an EIS.6 And since this EIS was evaluating both the MDP and an APD, BLM
included complete APD packages in the EIS so as to inform the public.7 The Bull Mountain EIS
set out required conditions for drilling approval, such as we are requesting, and it specified detailed
“design features” and “mitigation measures” for future development, and it required closed loop
drilling.8 Appendix C in the Bull Mountain EIS provides for Design Features, Mitigation Measures,
and Conditions of Approval.

In its FONSI, CFO stated its reason for not producing an EIS was that, “BLM determined
through the analysis presented in the Environmental Assessment that the proposed action would
not result in significant impacts; therefore, preparation of an Environmental Impact Statement is
not required.” But the Hayhurst EA itself acknowledges significant impacts, the NPS also
concluded there were significant impacts, and there was new information presented to CFO in
2010. CFO should have prepared an EIS to fully evaluate the environmental consequences of the
Hayhurst MDP and twelve APDs, as well as to consider appropriate mitigation measures, such as
those proposed by the NPS.
Approval of the MDP and APDs prevents BLM from evaluating and imposing COAs on
development of the leases managed by the MDP, foreclosing alternatives that would protect the

6

See Bull Mountain Draft EIS, p. ES-10. https://www.blm.gov/style/medialib/blm/co/information/
nepa/uncompahgre_field/13-22_bull_mountain.Par.23863.File.dat/ Bull_Mtn_DEIS_Jan2015_508_reduced.pdf.
7

Bull Mountain Final EIS, p. ES-5. https://www.blm.gov/style/medialib/blm/co/information
/nepa/uncompahgre_field/fy2015_nepa_docs.Par.39131.File.dat/Bull_Mtn_Final_EIS_July_2016_Vol_I_508_reduc
ed.pdf.
8

Bull Mountain EIS Table ES-2, p. ES-9; p. ES-11.

17

 ACEC values. Similarly, approval of the MDP and APDs prevents BLM from evaluating
alternatives that would address cumulative impacts to night skies and desert ecosystems in
Carlsbad Caverns National Park. As discussed above, BLM cannot require phased drilling in the
area around the park in a manner that will affect the MDP and APDs. Thus, in addition to not
properly determining the significance of the impacts from this project, the Hayhurst MDP
decision document was also approved without considering a reasonable range of alternatives.
There is a need to discuss the effect of this MDP on the reasonable alternatives that will be
available in the RMP revision for the Carlsbad Field Office. The requirements of NEPA have
clearly not been met for the Hayhurst MDP project.
Federal Land Policy and Management Act
FLPMA is BLM’s organic act that specifies provisions for all aspects of BLM land
management. There are a number of relevant provisions in FLPMA that are applicable to the
Hayhurst MDP and the ongoing Carlsbad Field Office RMP revision. For example, the public
lands must be managed in a way that protects them, and in some cases, preserves them. 43
U.S.C. § 1701(a)(8). They must be managed under principles of multiple use, which among other
things requires harmonious and coordinated management “without permanent impairment.” Id.
§§ 1702(c), 1732(a). Priority is to be given to designating ACECs. Id. § 1712(c)(3). BLM is to
“provide for compliance with applicable pollution control laws, including State and Federal air,
water, noise, or other pollution standards or implementation plans . . . .” Id. § 1712(c)(8). And
BLM must prevent unnecessary or undue degradation of the lands it manages. Id. § 1732(b).
There are a number of requirements in BLM’s planning regulations that require protection of
lands in the interim during RMP revisions so that a reasonable range of land management
options can be considered. We would note that BLM’s FLPMA land use planning regulations

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 have just been revised and establish new requirements for RMP revisions. 81 Fed. Reg. 89,580
(Dec. 12, 2016).
To meet FLPMA requirements, the BLM must complete the Carlsbad Field Office RMP
revision before it approves the Hayhurst MDP. CFO states on its RMP revision website that
revision is needed in part because, “[c]hanges in population, types of uses, technologies, user
interests, and public understanding of resource availability, capabilities, and constraints, have
made the existing RMP and its amendment decisions less effective in allocating use. It has
become more difficult to find public land parcels with non-conflicting uses in the planning area.”
BLM’s interest in promoting mineral production from the public lands and generating
royalties is contingent on first performing adequate analysis and land use planning to assure that
the development is environmentally and socially sound, as required under FLPMA and NEPA.
See 43 U.S.C. § 1701(a)(8) & (12) (BLM must manage the public lands for multiple use “in a
manner which recognizes the Nation’s need for domestic sources of minerals . . . in a manner
that will protect the quality of . . . ecological, environmental values.”); 43 C.F.R. 1610.6-3(a) and
(b) (resource management actions must conform to the new RMP and BLM must make activities
under the plan conform with the plan).
In addition, where BLM has been presented with information that was not considered
during preparation of the original RMP and, therefore, is not reflected in the existing NEPA
analysis, then the information must be considered prior to making management decisions. See,
e.g., Southern Utah Wilderness Alliance v. Norton, 457 F. Supp. 2d 1253 (D. Utah 2006)
(information not considered in NEPA analysis in existing land use plan meant that the existing
plan could not support leasing; new information must be considered).

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 Here, new information was presented to CFO in 2010 in the form of an ACEC
nomination from NMWA and its own ACEC nomination, as well as through inventory of LWC
both from BLM and NMWA. In addition, the CFO’s own stated reasons for revising the
Carlsbad RMP acknowledge that a revision “is necessary because a number of changes have
occurred, both on the landscape and in the resource use and protection arenas.” It then identifies
some of these changes to include:





“continuing fluid and solid mineral extraction and energy development in the
area and new technologies being used to extract those resources”;
“Updated or new wildlife and special status species stipulations, Conditions of
Approval (COAs), and Best Management Practices (BMPs) are needed for oil
and gas development. Special designations such as Areas of Critical
Environmental Concern (ACECs) need to be reexamined, especially for several
cultural areas”; and
“opportunities to update recreation decisions in the plan revision to capitalize on
community interest and needs, as well as surrounding tourism destinations.”

By approving a Master Development Plan and twelve associated APDs in the midst of an
RMP revision, BLM is limiting the choices it can make for future management of the Field
Office. BLM acknowledged the relevant and important values of the proposed Chihuahuan
Desert Rivers ACEC, as well as the Gypsum Soils ACEC, and according to recent meetings with
CFO, is considering designation of the ACECs in at least one of the alternatives in the revised
RMP, along with how drilling would be managed in proximity to desert riparian areas and in the
presence of fragile soils. As noted above, approval of the MDP and APDs could foreclose
alternatives that would protect the ACEC values. Similarly, approval of the MDP and APDs
prevents BLM from evaluating alternatives that would avoid or minimize cumulative impacts to
night skies and desert ecosystems in Carlsbad Caverns National Park, including phased
development.

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 During a plan revision, BLM has a responsibility not to authorize actions which could
preclude a choice among reasonable alternatives. According to the agency’s Land Use Planning
Handbook:
During the amendment or revision process, the BLM should review all proposed
implementation actions through the NEPA process to determine whether approval of a
proposed action would harm resource values so as to limit the choice of reasonable
alternative actions relative to the land use plan decisions being reexamined. Even though
the current land use plan may allow an action, the BLM manager has the discretion to
defer or modify proposed implementation-level actions.
Handbook 1601-1, Section VII(E) (emphasis added).
The BLM’s guidance is supported by applicable NEPA regulations. 40 C.F.R. §
1506.1(a) states that, “[u]ntil an agency issues a record of decision…no action concerning the
proposal shall be taken which would: 1. Have an adverse environmental impact; or 2. Limit the
choice of reasonable alternatives”. Similarly, 40 C.F.R. § 1506.1(c) states that:
[w]hile work on a required program environmental impact statement is in progress and
the action is not covered by an existing program statement, agencies shall not undertake
in the interim any major Federal action covered by the program which may significantly
affect the quality of the human environment unless such action: 1. Is justified
independently of the program; 2. Is itself accompanied by an adequate environmental
impact statement; and 3. Will not prejudice the ultimate decision on the program.
Interim action prejudices the ultimate decision on the program when it tends to determine
subsequent development or limit alternatives.
Additionally, BLM Instruction Memorandum 2010-117, which is binding national policy,
confirms that “there is no presumed preference for oil and gas development over other uses”; this
policy applies even when areas are open to leasing under applicable land use plans and especially
when those plans have been found out of date by BLM. In evaluating the proposed MDP and
twelve APDs, BLM should have assessed proposed oil and gas development in regard to how it
would impact the management of other resources and uses already under consideration through
the RMP revision. In the context of the Hayhurst MDP and the twelve APDs, BLM’s actions

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 were not justified by an adequate EIS (as discussed above) and would also foreclose important
alternatives under consideration. BLM should have deferred approval of the MDP until the RMP
revision was completed.
FLPMA obligates BLM to “give priority to the designation and protection of areas of
critical environmental concern.” 43 U.S.C. § 1712(c)(3). BLM’s ACEC manual requires that all
areas which meet the relevance and importance criteria must be “fully considered” for
designation in resource management planning. BLM Manual 1613 at .21. The manual states at
section .21(E) that
If an area is identified for consideration as an ACEC and a planning effort is not
underway or imminent, the District Manager or Area Manager must make a
preliminary evaluation on a timely basis to determine if the relevance and
importance criteria are met. If so the District Manager must initiate either a plan
amendment to further evaluate the potential ACEC, or provide temporary
management until an evaluation is completed through resource management
planning. Temporary management includes those reasonable measures
necessary to protect human life and safety or significant resource values from
degradation until the area is fully evaluated through the resource
management planning process (emphasis added).
In this case, the area in question was nominated for ACEC designation six years ago in
2010, before planning formally began. In NMWA’s nomination, it pointed to this clause of the
ACEC manual and asked CFO to use interim management to protect the resource values. In
accordance with the passage above, CFO determined that the relevance and importance criteria
were met. It was required at that point to protect those values until a determination was made
about ACEC designation in the plan. Further, once CFO was considering an MDP and approval
of twelve APDs, it had an immediate obligation to put interim management in place to protect
ACEC values and an important opportunity to design the MDP to incorporate such protections
through an EIS. BLM did not take any of the required actions and so has failed to comply with
its guidance as well as FLPMA’s mandate that the agency give priority to the designation and
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 protection of ACECs. 43 U.S.C. § 1712(c)(3). In reviewing the response to comments in the
Hayhurst EA it is not apparent to us that BLM responded to the need for ACEC interim
management at all. And while the BLM seems to acknowledge it can eventually manage the
proposed ACECs as ACECs, it needs to do a more thorough analysis of the relevance and
importance values in these areas, which we discussed above, and how they can be protected.
Public Involvement and Comment Issues
As discussed in detail in our IBLA appeal, the approval of the Hayhurst MDP was
notable for the near secrecy that accompanied it. We were not notified of this project despite
being parties which would have an obvious interest due to the ACEC and LWC proposals, and
only were able to comment after receiving an anonymous tip. We were not notified that the
FONSI had been signed and only learned about it through the NPS. And even then, the FONSI
and other documents were not even posted on the BLM website until well after they were signed,
because we requested it numerous times through email. The procedures used by the CFO nearly
defeated public participation, and would have defeated it had we not objected. This secrecy was
despite the fact NMWA and TWS have continued to have regular contact and meetings with
CFO over the past five years; in-person, over the phone, and by email. These procedures are
further evidence of a failure to comply with NEPA.
NEPA requires that major federal actions be reviewed by the public, that agencies
respond to the public’s concerns when making decisions about proposed actions, and that NEPA
determinations are not made before public comments are considered. See, e.g., 40 C.F.R. §§
1500.1(b) and 1503.4. The purpose of providing a comment period on an EA is “to allow the
public an opportunity to comment on the agency’s determination.” BLM National Environmental
Policy Act Handbook, H-1790-1, Section IV(B)(4)(a). The regulations require that agencies

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 “make diligent efforts to involve the public in preparing and implementing their NEPA
procedures.” 40 CFR § 1506.6(a). According to the handbook, the primary goal of public
involvement is to ensure that all interested and affected parties are aware of the proposed action.
The Handbook states that BLM should reach out to potentially interested community
organizations. BLM is told, “[b]efore and during the preparation of the EA, be very thoughtful
about the level of public involvement that may be necessary with respect both to the decision to
be made and the analysis of the environmental consequences of that decision.” BLM Manual
1790-1, section 8.2. Separately, in CEQ’s NEPA’s Forty Most-Asked Questions, agencies are
told that, “[a] combination of methods may be used to give notice, and the methods should be
tailored to the needs of particular cases…[t]he objective, however, is to notify all interested or
affected parties.”
Clearly BLM’s failure to adequately inform the parties to this matter about the Hayhurst
MDP violated the public involvement provisions of NEPA. This is yet another reason why an
EIS should be prepared for the Hayhurst project—so that the public can be adequately engaged.
This also emphasizes the need to adopt the solutions to the problems in this MDP and the
Hayhurst EA that we have identified in these comments.
Our interests are clear: our members visit the disputed lands and public lands in the
vicinity of the MDP project area for a variety of aesthetic and recreational pursuits, they live and
work in neighboring communities, and have been involved in CFO decisions for many years. We
could be harmed by the immediate development of twelve wells and the planned development of
over 400 wells on over 100 well pads. These will result in irreversible and irretrievable
environmental damage and alteration of the existing resources, as well as impacts to the range of
alternatives available for the ongoing RMP revision, including the ACEC we have nominated.

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 The NPSs interests are also clear. They have emphasized and documented in detail these
concerns in two comment letters, the first on August 29, 2016 and the second on November 1,
2016. These letters were discussed above. Clearly the BLM must ensure full transparency
relevant to this project so that the concerns of the NPS can be fully addressed, as well as the
concerns of the public.
In this case, BLM’s approval of the Hayhurst MDP and twelve APDs authorizes drilling
which will immediately destroy natural values and harm soils and riparian areas, as well as any
user’s enjoyment of those resources. BLM’s decision will impact lands undergoing an RMP
revision, harm resources on the affected area and in the adjacent Carlsbad Caverns National
Park, could preclude designation of an ACEC, and could lead to other sensitive areas in CFO’s
jurisdiction, such as LWC, being impacted before the RMP revision is finished. Consequently,
Appellants will be irreparably harmed. This emphasizes the inappropriate level of public
involvement in this matter, and the need to correct that through development of an EIS.
Restatement of Concerns Regarding the Hayhurst MDP
As we indicated in the first section of this request for State Director review, we believe
there are two principal ways the BLM can resolve the problems evident in the Hayhurst MDP.
First, it should develop an EIS for this project and not rely on a faulty EA. Second, it should not
approve the Hayhurst MDP during the pendency of the Carlsbad Field Office RMP revision.
These two changes are needed in order for the Hayhurst MDP to comply with the
requirements of NEPA and FLPMA. In addition, the BLM should put in place interim
management requirements that protect the relevant and important values of the ACECs proposed
in the MDP area before the MDP is approved. Moreover, development of an EIS would allow the

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 BLM to ensure full compliance with the air quality oil and gas project NEPA MOU that it has
entered into with the NPS and EPA.
The State Director should reverse the Hayhurst MDP Decision Record and FONSI
pending completion of an updated EIS and development of the Carlsbad RMP. The State
Director should also require the development of interim management plans for the ACECs in the
MDP area.
Conclusion
We appreciate your consideration of this Request for State Director Review, and the
opportunity to present an oral presentation to you regarding our concerns. The solutions to the
issues we have identified—preparation of an EIS for the Hayhurst MDP project, not approving
the project until the Carlsbad Field Office RMP has been revised, putting in place interim
management requirements to protect the ACECs that are under consideration, and improved
compliance with the air quality MOU—are well within your authority to direct. Taking these
actions will help ensure this project complies with NEPA and FLPMA, and will make it
unnecessary for us to refile our appeal with the IBLA.

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 We look forward to the opportunity to present these issues in more detail at an oral
presentation; we are also available to answer questions or provide additional information prior to
that meeting. In the interim, we request a stay of operations approved in the MDP and related
APDs based on meeting the criteria for a stay set out in the applicable regulations.

Sincerely,
Judy Calman, Staff Attorney
New Mexico Wilderness Alliance
142 Truman St. NE #B-1
Albuquerque, NM 87108
505-843-8696
judy@nmwild.org
Nada Culver, Senior Counsel and Director
BLM Action Center
The Wilderness Society
1660 Wynkoop Street, #850
Denver, CO 80202
303-225-4635
Nada_culver@tws.org
David Nimkin, Southwest Regional Director
National Parks Conservation Association
307 West 200 South, Suite 5000
Salt Lake City, UT 84101
801.521.0785
dnimkin@npca.org

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