To the U.S. Fish and Wildlife Service
Alamosa, Colorado

Please enter these comments into the record of the Environmental Assessment (EA) of Planned Gas and Oil Exploration, Baca National Wildlife Refuge. I am a resident home owner in the Baca Grande subdivision, and this is an original letter. Other residents, I am sure, will be sending original letters addressing questions of public health and safety, including groundwater pollution. They will raise questions involving protection of rare and endangered species such as lynx that live here, and of migratory birds and their habitat. These are crucial issues, but this letter is aimed at an issue I know a little more about from personal experience – namely, the burden that approval of the plan developed for Lexam Explorations Inc. will place upon the exercise of religion.

The locality. Missing from the EA, in my reading, is recognition of the uniquely religious nature of the local community (Crestone-Baca) adjoining the refuge – an issue raised in every meeting I have attended on the “Lexam” problem. Since the 1970’s, when the Manitou Foundation land donations to religious groups began, Crestone-Baca has been recognized as a leading national center for religious retreats and spiritually based healing arts. Examination of the local newspaper, the monthly Crestone Eagle, reinforces this impression. The front section of the February edition, for example, carried more than 30 ads for healing or spiritual guidance and half as many articles or announcements in the same vein. There were a dozen ads for bed and breakfast accommodations, some targeting people on retreat.

Two national publications in recent months have portrayed Crestone-Baca as a global religious center. The U.S. News and World Report included Crestone-Baca in its Nov. 26 cover story on “The world’s most spiritually important sites,” quoting a Tibetan Buddhist scholar to the effect that this is the best place in the world to practice meditation (the Buddhist equivalent of prayer). The New York Times in a Jan. 11 travel feature headed “Sacred Ground” said, “Deserts, forests and mountains figure so prominently in humanity’s quests for the divine that Crestone’s geographic hat trick seems ideal for universal worship.”

QUESTION 1: Since the process of the National Environmental Policy Act (NEPA) leads to either an EIS or a Finding of No Significant Impact (FONSI), and since a FONSI requires consideration of the human environment in a context which includes the nation, the region and “the locality,” why is a discussion of impact on the nationally recognized religious activity of the Crestone-Baca community missing from the EA?

The exercise of religion. Here, from my own observation, are some of the more obvious and accessible religious exercises that take place within sight (and sound, if the drilling proceeds) of the silent expanse of the valley floor:

— At 10:08 a.m. on days of the new moon and the full moon, traditional fire ceremonies at the Haidakhandi Universal Ashram. Hindu practice venerates the motherly spirit of the earth.

— At 8 a.m. and 6 p.m. daily, joyrei (a spiritual transmission) at the chapel of the Shumei International Institute perched above the valley. Shumei is a Shinto-based religion whose credo includes reverence for the earth and its natural beauty.

— Any time, personal prayer in the Islamic tradition at the Ziggurat, an Assyrian prayer tower that probably is the closest religious structure to the proposed drill sites.

— Any time, individual circumambulation and prayerful meditation at each of two prominent Tibetan Buddhist stupas sited to incorporate the valley vista. The site of the larger stupa was chosen by the 16th Karmapa Lama. The smaller stupa was consecrated two years ago by a group of high lamas led by Tsoknyi Rinponche of Nepal and Crestone. These Kagupa Buddhist monuments are already respected landmarks.

— Daily religious activities at the Choyong Dzong (Nyingma Buddhist), the Crestone Mountain Zen Do (Japanese Buddhist), the Carmelite Monastery (Roman Catholic Christian). And prayer and meditation goes on constantly in many other less obvious retreat centers — and in the beautiful solitude of meditation gardens or on the trails overlooking the valley. A drive through the subdivision will reveal unusual architecture (domes, towers) that is spiritual in theory.

QUESTION 2: Does the USFWS deny that the above activities are authentic expressions of religion? If not, why were they not considered as part of the human environment and the context involving “the locality” in the EA?

It might be argued in response that this was covered in the EA under the heading “4.11 Aesthetics,” which leads off by conceding: “The visual aspects and quietness are highly prized values for area residents.” Before considering whether this generality, which could apply to any residents anywhere, covers the unique and diverse religious values of Crestone-Baca, let us look at the acknowledged impacts itemized in the EA.

Night-time glare. The EA asserts that the bright lighting on the 135-foot drilling rig and over the 90,000-square-foot “pad” (which would include well lighted oilfield service trailers and the supply yards) would not be significant and, whatever, the lights are required by OSHA regulations. Further, headlights of vehicles going to and from the drill sites at night would be visible. The only mitigating factor considered is light shielding, which the authors of the EA concede would not be completely effective. The EA does not mention an obvious mitigation that would be effective: prohibiting drilling at night.

QUESTION 3: Is it the position of the USFWS that the economic benefit of 24-hour drilling to Lexam overrides the public interest? Is this why the USFWS failed to consider a prohibition of night-time drilling?

Daytime visibility. The EA says, “The drilling rig would be visible during clear days, but differing vantage points could affect visibility.” It does not define clear days or estimate their frequency. It does not describe or locate representative vantage points. The nearest the EA authors come to acknowledging intrusion on the view from Baca Grande subdivision is this: “Looking down from the higher elevations to the east, the rig may not stand out above the horizon at a distance of more than a few miles.” This idea obviously has not been field checked. The horizon is the San Juan crest, 50 miles away at about 12,000 feet elevation. It appears the authors of the EA limited consideration of visibility to points on or near the valley floor.

The EA, while mentioning background and middle-ground, does not consider the high visibility of objects seen against the flat white surface of snow in the valley, a likely condition during the winter. The EA does not discuss slant drilling, a proven technique to avoid sensitive areas.

QUESTION 4: Did the authors of the EA decline to do precise geometric representations of visibility (from points in the Baca Grande subdivision to drilling locations) because they dismissed the relevance of the human environment, including the locality? Did they fail to consider mitigation for the same reason?

Noise. The diesel-electric power system of a modern drilling rig of the size necessary to lift 14,000 feet of drill pipe is similar to that of a main line railroad locomotive. It is hard to believe that, particularly on a winter night in this quiet locality, the rev of a railroad locomotive could not be heard two – even five – miles away. The EA says that experimentation in Wyoming demonstrated that at 2,000 feet away the noise from a drilling rig attenuates to less than the statutory nighttime maximum in Colorado. Noise approaching that urban maximum is not likely to be acceptable in this community, where it is often so quiet you can hear a raven fly. The EA’s assertion that there is an “ambient” noise level in Crestone-Baca that would, in effect drown out the rig, is unsubstantiated. At night the ambient noise level is likely to be zero. The authors of the EA list muffling of the engines as a mitigating factor, but railroad locomotives have mufflers too. The EA fails to consider limiting drilling to daylight hours, when most people are not trying to sleep.

QUESTION 5: Does the USFWS dismiss the importance of drilling noise audible at specific locations in the Baca Grande subdivision? Is this why no projections beyond 2,000 feet and no tests of actual ambient sound levels were made? Is this why the USFWS failed to consider limiting drilling to daylight hours?

Cumulative impact. One recurrent argument offered in the EA as a foundation for a FONSI is that the drilling will last only six months. NEPA regulations discount this argument, saying, “Significance cannot be avoided by terming an action temporary.” The hidden premise, regardless, is that the exploratory wells will be dry holes, but the USFWS has does not have any basis for that presupposition. Even if the exploration fails and Lexam goes away, the EA leaves open the question whether truck roads will be returned to nature. And, if the test wells are encouraging, Lexam will be seeking to drill more test wells. If they are productive, a minor gas boom will invade the valley. In both cases the original approval would be used as a precedent.

QUESTION 6: Did the USFWS willfully ignore the law?

The Religious Freedom Restoration Act. The USFWS Environmental Assessment recites a list of other state and federal laws and regulations that were considered by the authors – ranging from the National Historic Preservation Act to the Clean Water Act to OSHA. Significant in its absence from this list is the federal Religious Freedom Restoration Act of 1993 (RFRA). Under this law, the federal government may not “substantially burden a person’s exercise of religion” without demonstrating “a compelling government interest” in doing so.

Exercise of religion is defined in a subsequent amendment (2000) to include “any exercise of religion, whether or not compelled by, or central to, a system of religious belief.” If a proposed action imposes a burden, the federal government must show that it chose the “least restrictive means” of furthering its compelling interest. The United States Supreme Court noted (City of Boerne, 521 U.S. at 534) that the twin requirements of the RFRA constitute “the most demanding test known to constitutional law.”

Confronted with a complaint that, in this case, the USFWS is about to impose a burden on the exercise of religion in Crestone-Baca, the federal government would have consider several things. Are the religious practitioners sincere? For example, is government prepared to say a fire ceremony is not religion or that circumambulating a stupa is pretentious? Will the intrusion of bright lights and big sounds on “sacred ground” have a substantial impact on the exercise of religion? The authors of the EA have not even approached these issues. Neither have they made a case for compelling interest, apart from the private property rights of Lexam, nor considered least restrictive means, such as distant slant drilling or daylight-only activities. What can be the compelling government interest in approving this wildcat drilling scheme?

It was described this way a year ago by The Resource Investor of Houston in the context of an interview with Lexam C.E.O. and majority owner Robert R. McEwen of Toronto: “That punching holes into virgin ground looking for oil and gas is risky is a given. Adventuresome early investors with a tolerance for high risk have a chance to take a ride with Rob McEwen as he and his team tries for the proverbial moon shot with Lexam. If successful, the company will undoubtedly become a hot item, possibly even radioactive.” This article is reproduced on the Lexam web site with implicit approval. Is this the compelling interest that defeats religious expression?

This “punching holes into virgin ground” statement has been read in public and without doubt offends the community. By contrast, last August about 150 residents of Crestone-Baca carried heavy stones to some private land near the border of the refuge. They laid the rocks in a circle and joined a Sioux holy man in a prayer ceremony to protect the “virgin” land and the earth itself. The stones presumably are still there and can be counted by any EIS investigator interested in quantifying consideration of what NEPA calls “controversy.”

In March 2007 the U.S. 9th Circuit Court of Appeals in Navajo Nation v. USFS held that the Forest Service violated the RFRA by approving a plan to use sewage effluent to make snow at a ski area on a peak near Flagstaff, Ariz., considered sacred by several Indian groups. Those who would sweep this affirmation aside as just another quaint Native American rights case should read the law. It expands a First Amendment right of all Americans.

FINAL QUESTIONS: Does the USFWS deny the sincerity of religious practices in the Baca-Crestone? Does the USFWS believe that the impact of wildcat drilling on the exercise of religion is simply a matter of aesthetics? Does the USFWS believe this issue is so negligible that obtaining opinions of religious leaders is unnecessary? Does the USFWS hold that the government has a compelling interest in letting a wildcatter punch holes in virgin ground without exploring least restrictive means?

I request a full Environmental Impact Statement to examine all issues relating to public health and safety, with particular regard to groundwater pollution, and to examine threats to Baca refuge wildlife, including rare or endangered species. The EIS also must address the issues raised in this letter – specifically, the burden that the federal decision to allow drilling as planned will place on the exercise of religion in the Baca Grande and Crestone locality.