ELR Citation: ELR 20101
No(s). 06-2352 (10th Cir. Apr 28, 2009)

The Tenth Circuit held that the Bureau of Land Management (BLM) violated the National Environmental Policy act (NEPA) when it opened New Mexico's Otero Mesa, the largest publicly owned expanse of undisturbed Chihuahuan Desert grassland in the United States, to mining. BLM opened the majority of the Mesa to development, subject to a stipulation that only 5% of the surface of the Mesa could be in use at any one time. BLM disregarded NEPA when it failed to supplement its envrironmental assessment after modifying an alternative, failed to consider the reasonable alternative of closing the entire Otero Mesa to fluid mineral development, and failed to demonstrate that it examined the relevant data regarding the likely impact of development on an aquifer. In addition, BLM erred in beginning the leasing process on the Mesa before conducting additional analysis of site-specific environmental impacts flowing from the issuance of development leases. However, BLM complied with public comment provisions in the Federal Land Policy and Management Act. In addition, Endangered Species Act challenges to the consultation process between BLM and the U.S. Fish and Wildlife Service regarding the Northern Aplomado falcon are moot since the bird is now classified as a nonessential experimental population.