The Crestone Eagle, June 2008:

Freedom of Information Act reveals possible improper influence on Baca Natíl Wildlife Refuge Draft EA
by Ceal Smith

While the public awaits a decision on Canadian energy company Lexam Explorations, Inc.’s proposal to drill two 14,000’ oil and gas wells in the Baca National Wildlife Refuge, documents released through a Freedom of Information Act (FOIA) request suggest that the Canadian “wildcat” company has unduly influenced the environmental analysis of its drilling proposal required under the National Environmental Policy Act (NEPA).

The Citizens for San Luis Valley Water Protection Coalition (WPC) filed a FOIA request on December 11, 2007 to obtain communications related to the Lexam Corporation’s exploration and drilling activities on the Baca National Wildlife Refuge. The request sought communications between the U.S. Fish and Wildlife Service (USFWS) and Lexam, the USFWS and ENSR Corporation, the contractor for the draft Environmental Assessment (EA), and ENRS Corporation and Lexam.

Under FOIA law, agencies are required to respond to a request within 10 working days. The WPC received a partial response of 6 pdf files from USFWS on April 1, 2008, more than 100 days after a response was due. The letter from Regional FOIA Officer Cathy Willis states “there are additional documents not included in this response that are still under review” and that USFWS has withheld two emails containing “Solicitor’s comments on [the] Baca EA” under attorney/client privilege.

Analysis of the documents by WPC staff confirms that critical communications are missing. Although a complete set of records is needed to confirm, the partial record provides a strong indication that Lexam Corporation attorney David Bailey and the Department of Interior Solicitor Steve Hoffman worked in concert to avoid difficult questions raised by local USFWS personnel, ENRS biologists and the public during the development of the draft EA.

A recent Government Accountability Office report confirms that in recent years, persons in the USFWS have pushed a pro-industry agenda by sending internal USFWS documents to industry representatives, and then altering scientific conclusions of USFWS scientists for political reasons. Because internal agency records which are normally protected from release were sent to industry representatives, the records must now be disclosed to the public under FOIA.

In order to vindicate WPC’s right of full access to USFWS records, the Energy Minerals Law Center filed an appeal with the US Department of Interior on behalf of the WPC on May 12. The basis of the appeal is that USFWS did not provide a response to the WPC FOIA request in a timely manner nor did they provide an explanation for the delay or a description of the documents still under review. The FOIA response also did not contain a description of the search as required. Lastly, the WPC maintains that all communication between Lexam and the USFWS, particularly the Lexam attorney’s comments on early, “internal” USFWS drafts of the EA, and all other documents being withheld should be immediately released to the public. The USFWS documents released so far are posted on the web at: slvwater.org under “press releases”.

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