Legal Issues Regarding Natural Gas Drilling on the Baca Land Grant

Creighton E. King

The legality of the question as to whether or not Lexam, a Canadian oil and gas company, should be allowed to do exploratory drilling in the Baca area is a complicated and nuanced one.  There are many angles to this issue.  From the perspective of Lexam and the associated stockholders, this company has every legal right and imperative to access the subsurface minerals, which they rightfully own.  From the perspective of environmental groups, the Baca National Wildlife Refuge is understudied and too fragile to sustain and recover from drilling.  From the perspective of the citizens of Crestone and the members of the surrounding spiritual communities, drilling in this area would disrupt a way of life and a pristine natural environment, which for many people is sacred.  This final point is especially interesting; it raises the question as to whether or not sacred areas should be preserved and protected by laws. 

Lexam Gas and Oil unquestionably do own the subsurface mineral rights in this area.  Legal precedents in this regard are very clearly on the side of Lexam.  The antiquated General Mining Act of 1872 stipulates that if an individual, organization, or company, own the subsurface minerals, they are entitled to access these minerals, regardless of the ownership of the above ground property.  Due to the fact that the area in which this company wishes to drill is a National Wildlife Preserve, it is the responsibility of the United States Fish and Wildlife Service to demonstrate that there would be no significant impact on this environment should drilling occur.   Though the Colorado Fish and Wildlife Service has drafted an Environmental Assessment arguing that no significant impact would occur, this finding is currently being petitioned, and will likely result in a court case.  If drilling is to be prevented, or at least arrested, the environmental angle is likely to be the most successful. 

Even if the United States Fish and Wildlife Service were to find that the Baca Wild Life Preserve would be significantly impacted by gas drilling, this would not expressly supersede the right of Lexam to access their minerals, it would simply put the burden on Lexam to demonstrate that they would be able to drill with the least possible impact on the natural environment.  The Community Environmental Legal Defense Fund, a Pennsylvania based organization, is working to pass legislation stating that the earth itself has rights; this is a difficult task in a world dominated by profit driven corporations that believe their property rights trump all others.  The environmental perspective on this issue is closely tied to the idea that this is a sacred place deserving of legal protection. 

Crestone and the surrounding area are home to over 20 distinct religious and spiritual centers.  For hundreds of years before white people even set foot in this area, the Native peoples from the general vicinity recognized this as a sacred site.  Today, Buddhist Monks from Tibet, Carmelite Catholics from Europe and America, Zen Buddhists from Japan and Germany, Practitioners of Shumei from Japan, Esteemed Hindu holy people from India, just to name a few, have all emphasized the sacredness of this place and have gone so far as to establish centers of spiritual practice in this area.  In this regard, the UNESCO world heritage protection act of 1972 could potentially be used as leverage in this case.  The article states that sites consisting of “works of man or the combined works of nature and man, and areas including archeological sites which are of outstanding universal value from the historical, aesthetic, ethnological or anthropological point of view.”  The Crestone area is fertile grounds for universally important ethnographic and anthropological work.  Unfortunately this act has little political power in this country because the US never signed the bill and is therefore exempt from any of its stipulations. 

What makes this area any more sacred than anywhere else is a difficult issue to quantify; it depends on the arguably subjective question of what makes something sacred.  Bill Buehler noted that the American Indian Religious Freedom Act of August 11, 1978 could be an important legal precedent for defending the land as significant.  Other than in issues concerning Native Americans, up to this point, no case law has been established indicating that any cultural or religious community has rights, which supercede property rights.  If this case law should exist, the breadth of its impact must be assessed.  Arguably any community is a cultural community and any tract of land is sacred.  The rubric by which cultural communities or sacred areas are defined is yet to be formally established, and once established, the diversity and subjectivity of perspectives on this issue are bound to lead to a dynamic and amorphous understanding of this issue.  This is both empowering and confusing; it allows the spiritual communities in the Crestone area to mold this definition to fit their description of “a sacred place,” but it also elicits questions surrounding the validity of this description.