Saturday, February 28, 2009

NMSLO & Archeological Resources; Legislation

...But not everyone believes the State Land Office is properly overseeing the thousands of archaeological resources on state lands. As a result, archaeologists say, history is being lost.

Under New Mexico law, sites on state lands are not afforded the same protections as those on lands owned by federal agencies such as the US Bureau of Land Management, National Forest Service or National Park Service. A bill before the state Legislature, if passed, would create more stringent oversight regardless of jurisdiction.

Critics say the State Land Office is in particular need of such oversight.

While Land Commissioner Pat Lyons maintains there is no destruction of archaeological sites, of the estimated 250,000 such sites on state lands (according to the State Land Office’s Web site), fewer than 5,000 have been identified and documented.
Furthermore, the State Land Office does not require its leasees to survey for cultural resources before breaking ground on projects. As a result, New Mexico Archeological Council President Deni Seymour writes in an e-mail to SFR:

“Many important archaeological sites are damaged or destroyed, without being recorded or studied.” She adds: “It is sad and it is surprising that a state agency does not see the discovery and protection of cultural resources as part of its obligation and fiduciary responsibility.”...

...Thanks to federal laws such as the National Historic Preservation Act of 1966 and the National Environmental Policy Act of 1969, a company must hire archaeologists before beginning a project—whether for energy development or, say, the construction of roads, pipelines or transmission lines—that is on federal lands or funded by federal money.

Before the start of a project, these contract archaeologists check state records to learn if sites have already been documented in the area; they then conduct foot surveys to identity remains in the proposed project area.

Under the guidance of the state historic preservation officer’s staff at the Historic Preservation Division, they then determine if a site is worthy of listing on the State Register of Cultural Properties or the National Register of Historic Places.

Because the process for nominating a site to the registers is costly and time-consuming, sites on federal lands are protected—which generally means avoided—if they are deemed “eligible” for listing on either of those two registers. Sites that cannot be avoided during construction are excavated and studied—all at a cost to the company. It’s common, therefore, for developers to adjust their plans—shift the location of a well pad or re-route a road—and avoid archaeological sites whenever possible in order to save money and avoid time delays.

When it comes to state, county or private lands, however, those federal laws don’t apply unless certain things are found—such as human remains—according to Samantha Ruscavage-Barz, a former archaeologist and now a staff attorney for Advocates for the West.

And while there are three New Mexico state laws pertaining to the protection of cultural resources on state lands, these laws are not nearly as clear-cut as the federal laws. In fact, they leave much open to interpretation.

State laws direct agencies to consider only those archaeological sites already listed on the registers, Ruscavage-Barz says. Federal laws, on the other hand, protect sites considered “eligible” for the registries.

If a site hasn’t been listed—or archaeologists have not surveyed an area to determine what resources are present—a state agency can approve a project without having any idea if cultural resources are present. Of the 160,000 archeological sites documented statewide, only 2,000 are listed on the state registry.

“So, we don’t know what’s being lost because we don’t know the full universe of historic properties that are out there,” Ruscavage-Barz says. “We only know what is listed on the state or national register—and that, of course, is a very small subset of potentially eligible sites that are out there on the landscape.”...

...Aside from the political and ideological disagreements Baca may have with Republican Lyons—who defeated Baca, a Democrat, during the 2006 election—the system is indeed antiquated.

“The way the constitution [defines it], the State Land Office exists to make money for the permanent fund for schools,” Baca says. “There’s nothing wrong with that, but this is almost 2010, and we’re operating with a constitution that didn’t take into consideration environmental issues, archaeological resources and other sorts of things that you should consider. It’s not just about making money. In the past it may have worked for us, but now we know better, OK?”

Amendments to the state’s constitution are necessary for reform, Baca says. “We need to change the constitution so that conservation is [considered] a beneficial use on state land—you don’t have to make money from every square acre of land. Some land should be preserved and not used at all,” he says. “But besides making conservation a real and practical use on state trust lands, we also need to have a land board put over the land commissioner.”

An oversight board, Baca says, wouldn’t interfere in day-to-day operations such as oil and gas leasing or grazing permits, but would have veto power over permanent land sales or trades—such as those occurring with regularity along the outskirts of Las Cruces.

Lyons, however, denies sites are being destroyed. “Our laws are a lot more stringent than the federal laws so, as a result of that, nothing gets done in the state [and] we lose a lot of money for education,” he says.

When asked if lessees are expected to conduct archaeological surveys before breaking ground on state trust lands, he answers that most companies rely upon their own staff. “Well, let’s say you’re ConocoPhillips, which is our largest producer: They look at every site before they drill. They send their guys in-house that [are] trained, and they go out and look [at the sites],” he says. “Now, that may not meet [the Historic Preservation Division’s] stringent standards—where they have to have hired somebody that’s been certified by their arch union or whatever it’s called—but they do every site. And if they find something, they flag it; they let people know.”

That wouldn’t be sufficient oversight, under a bill proposed by state Rep. Gail Chasey, D-Bernalillo. If passed, the New Mexico Consolidated Environmental Review Act would ensure that every proposed project, regardless of jurisdiction issues, be subject to environmental and archaeological reviews.

HB 520 would require companies proposing projects on state lands—or using state funding—to complete environmental studies similar to those conducted under the National Environmental Policy Act.

The idea for the bill came after a company planned to build a cement plant across from an elementary school in Albuquerque’s South Valley. There were no laws that required the environmental impacts of the project be evaluated—despite its proximity to the school and potential for pollution—because it was not on federal land or being built with federal funds.

“Any number of [projects] have come up in recent years that have focused our attention on the fact that there is really no requirement whatsoever for state or local governments or state agencies to look at environmental impacts when evaluating certain projects,” she says. “[The Consolidated Environmental Review Act] would put something like this in place.”

Such a law also would mean that archaeological resources overseen by all state agencies would receive the same care they do on federal lands, according to Advocates for the West’s Ruscavage-Barz. “I think it’s a good opportunity to address some of the shortcomings in the state cultural property acts,” she says. “And this would be an opportunity to try to have some sort of requirement for survey on state trust lands, for example, because you would have to be looking for potentially eligible properties as well as making sure there are no listed properties within your project area.”...

Thursday, February 26, 2009

Idaho counties could have final say on bighorns

Idaho's county commissioners would have the final say on transplanting bighorn sheep in the state under two bills introduced Monday in the Senate.

The bills, sponsored by Sen. Monty Pearce, R-New Plymouth, come in response to a Payette National Forest plan to remove domestic sheep grazing from wild bighorn sheep habitat in Hells Canyon and elsewhere to prevent the transmission of diseases that kill the bighorn.

The plan has angered sheep ranchers and Idaho lawmakers who have no power to stop the U.S. Forest Service. So instead, the bills require the Idaho Department of Fish and Game to get certification that not only bighorn sheep but deer, elk, moose, antelope and other big game that are transplanted or relocated in the state have been tested by the Idaho Department of Agriculture.

It also would require Fish and Game to get approval from ranchers who graze in the area before they transplant bighorns.

Finally, the bills would place in state law the existing Fish and Game policy to move or kill any bighorn sheep that move into an area where domestic sheep are grazed.

"I believe there is room for both of them," said Pearce. "But if I have to make a choice I have to make it for people."

Earlier this session, one of the ranchers, Ron Shirts, told lawmakers he is frustrated that the Payette action overrules a 1997 agreement between the state, the Foundation for North American Wild Sheep and others that allowed transplanting of bighorns into Hells Canyon. The agreement said the bighorns would not be used as a pretense to force the ranchers to quit grazing on federal land.

"I think if you sign an agreement you stand by it," Pearce said.

But the Nez Perce Tribe, the Wilderness Society and other groups that were not party to that agreement - especially the Western Watersheds Project - went to court to force the Forest Service to make the ranchers remove their sheep.

No hearings are scheduled yet, but Senate Resources Chairman Sen. Gary Schroeder, R-Moscow, said he wanted to make sure disease experts from both in-state and out can testify.

"I'm not inclined to support retribution," Schroeder said.

He also wanted to make sure the bills don't hurt collaborative talks led by Republican U.S. Sen. Mike Crapo.

Idaho Department of Fish and Game officials said they would not comment until the agency's commissioners take a position later this week.

Rocky Barker: 377-6484

Monday, February 23, 2009

Nationalizing the cars and bikes of rock collectors — Pending Omnibus land bill’s forfeiture provision has broad reach

By John Berlau

At the same time there has been so much talk of government nationalization of troubled big banks, a bill quickly snaking through Congress would allow the feds to expropriate cars, bicycles and other “vehicles and equipment” of everyone from amateur collectors of rocks to kids going on scavenger hunts.

In the Omnibus Public Land Management Act of 2009, which passed the Senate (S. 22) in January and is up for a vote in the House as early as this Wednesday, a “forfeiture” provision would let the government confiscate “all vehicles and equipment of any person” who disturbs a rock or a bone from federal land that meets the bill’s broad definition of “paleontological resource.” The seizures could take place even before a person and even if the person didn’t know they were taking or digging up a “paleontological resource.” And the bill specifically allows the “transfer of seized resources” to “federal or non-federal” institutions, giving the government and some private actors great incentive to egg on the takings.

Groups representing those from scientists to rock collectors to other fossil enthusiasts have warned of ominous consequences that could criminalize the exploration and learning about natural history ironically in the name of protecting nature. According to Tracie Bennitt, president of the Association of Applied Paleontological Sciences, the bill’s language is so vague and the penalties such as forfeiture so severe that it could allow the government to “put scientists in jail and confiscate university vans.” In a letter on the bill to members of Congress, Bennitt warns, “We can visualize now a group of students unknowingly crossing over an invisible line and ending up handcuffed and prosecuted.”

The area of concern is Subtitle D of the bill called the “Paleontological Resources Preservation Act.” The provisions in this subtitle make it illegal to “excavate, remove, damage, or otherwise alter or deface or attempt to excavate, remove, damage, or otherwise alter or deface any paleontological resources located on Federal land” without special permission from the government.

A “paleontological resource” is broadly defined in the bill as “any fossilized remains, traces, or imprints of organisms, preserved in or on the earth’s crust, that are of paleontological interest and that provide information about the history of life on earth.” Penalities for violations include up to five years in jail, and, as previously stated, all vehicles and equipment “used in connection with the violation” are subject even before trial “to civil forfeiture, or upon conviction, to criminal forfeiture.”

Among the problems, critics explain, is that the language is so broad that merely picking up rocks under this bill could be found guilty of “excavating” or “removing” a “paleontological resource.” There are numerous rocks, stones, and other objects of nature that contain fossilized imprints and, in the bill’s language, “are of paleontological interest and that provide information about the history of life on earth.” In fact, it is likely the most rocks that people pick up would meet this definition.

So people from mining companies to amateur geologists known as “rockhounds” to children gathering stones on field trips could be at risk for unintentionally violating this bill should it become law. The law does purport to allow an exception for a “resonable amount” of “casual collecting,” but then practically negates that excepion by saying that the “reasonable amount” shall be enitirely “determined by the Secretary” of Interior or Agriculture.

In an analysis of a similar bill in previous session of Congress, the policy group Partnership for America noted this scenario, “If a person were to be out hiking and picked up a rock as a souvenir, an enforcement officer who discovers this situation, at his or her discretion, could seize the equipment and the vehicle in use by the person or family at the time of the ‘offense.’” The analysis concluded, “The legislation may sound benign on its surface, yet it could have very dire unintended consequences for mining companies, rock hounds (geology enthusiasts) and average citizens who enjoy our national forests.”

One of those consequences is the civil forfeiture provision in Section 6308, which would leave those accused without their cars or other property until the trial was completed — basically the property would be guilty until proven innocent. As described by the Partnership for America analysis: “Even if a person eventually prevails in their case should they be prosecuted under this Act, their family would be without the use of the equipment and vehicle until the case is adjudicated, which could be months or even years, creating an extreme hardship in many cases. The government would likely try to obtain a guilty plea in exchange for a reduced penalty or the return of some of the personal property, which many innocent citizens would accept to avoid the cost and inconvenience of a trial.”

In fact, civil forfeiture had been so abused in drug cases — with reports of cops driving around Porsches of suspected drug offenders –that a group of conservative and liberal congressmen drafted a bill to reform the process. The late House Judiciary Committe Chairman Henry Hyde, R-Ill. and then-Rep. Bob Barr, R-Ga., joined with Rep. (and current Judiciary Committee Chairman) John Conyers, D-Mich., and Rep. Barney Frank, D-Mass., to sponsor the Asset Forfeiture Reform Act that was signed into law in 2000. The law increased the government’s burden of proof before it could engage in the pre-trial confiscation of the property of the accused.

Describing the situation before the law was passed, Hyde wrote in his Cato Institute book Forfeiting Our Property Rights, “Civil asset forfeiture has allowed police to view all of America as some giant national K-Mart, where prices are not just lower, but non-existent — a sort of law enforcement ‘pick-and-don’t-pay.”

But the pending Omnibus bill would unfortunatley take U.S. civil liberties a big step back to the situation before the 2000 reforms passed. And as Bennitt of the Association of Applied Paleontological Sciences points out in her letter, it also creates the vaguely defined crime of “submit[ting] any false record, account, or label for, or any false identification of, any paleontological resource excavated or removed from Federal land.”

But in geology, false records can be unintentional and are often unavoidable. As Bennitt notes, honest errors in labeling fossils are almost inevitable even for the top museums. She writes: “Paleontology is a field that is not set in stone. What you find and label in the field may not be what you find as preparation is undertaken in the lab.”

She adds that “penalties for misidentification of fossils will place every museum in jeopardy,” because “there is not one museum that is free from labeling errors on specimens” in some of its exhibits or collections.

Bennitt concludes that the bill would have the perverse effect of limiting scientific inquiry and knowledge of natural history. She notes that “museums and universities collecting on public land do not have the time, money or staff to collect everything they see. These specimens end up as dust as they erode away.” Amateur and professional fossil collectors have helped scientists piece together natural history, and this bill may lock thier skill out of the process.

At a time when the federal government should be busy catching and jailing the Madoffs, Stanfords, and other alleged fraudsters who swindled Americans out of billions, it seems a particular waste of time to hunt down nature enthusiasts who may have inadvertently disturbed a “palentological resource.” And it would indeed be a tragedy if a rock hunter’s bike or car were “nationalized” before the first bad bank was even laid a finger on.

The House will like be voting this week on the bill as S. 22, the exact same “Omnibus Public Land Management Act of 2009″ that passed the Senate with these provisions. Some reports have the bill being scheduled for a Wednesday vote, but it may also be Thursday or Friday. If it passed the House, it will likely go straight for signature to President Obama, so this may be the last chance to get changes to the bill.

To express your views to your Representative or Senator in Congress, you can call the Capitol switchboard at (202) 224-3121 or 225-3121. Ask the operator to connect you to the office of your member of Congress.

Saturday, February 21, 2009

BLM Taps Californian Mike Pool as Acting National Director

News Release

Mike Pool, California state director of the U.S. Bureau of Land Management (BLM), has been tapped to serve as the agency's acting national director in Washington D.C., effective March 1.

Pool, 55, a career veteran, has served more than 34 years with BLM, starting at the field office level and working his way up through a variety of assignments in Alaska, California, Colorado, Nevada, New Mexico, Washington D.C., and the Department of the Interior.

He has been California state director since 2000, overseeing 15.1 million acres of public lands in California and another 1.5 million in northwestern Nevada. In the new acting position, he will oversee 256 million surface acres – more than any other federal agency. Most of this public land is located in 12 western states, including Alaska.

He replaces current BLM Acting Director Ron Wenker, who will return to his current position as BLM's Nevada state director. Pool will remain in the new assignment pending selection of a permanent director by new Secretary of the Interior Ken Salazar. In California, Pool's Associate State Director Jim Abbott will serve as acting California state director.

"I'm honored by the new assignment and look forward to assisting the new administration care for the public lands under BLM's jurisdiction," he said. The 55-year-old Pool, an Arizona native raised in New Mexico, holds a B.S. in wildlife science from New Mexico State University.


Friday, February 13, 2009

The Clean Water Act and Nonpoint Source Pollution: Implications for Western Agriculture

By Loretta Singletary

Extension Educator, University of Nevada Cooperative Extension


Nevada is the driest state in the nation. Total average annual precipitation is approximately nine inches per year. Surface water in Nevada is limited and provides approximately 60 percent of the state's total water supply. The remaining 40 percent of water supplies are provided by ground water. Some areas in Nevada depend upon ground water supplies for 100 percent of their water.

Over the past few decades there has been a significant increase in litigation surrounding western water resources, including Nevada's watersheds. Agriculture has been named as a defendant in several cases. Those involved in agriculture need to acknowledge that water, a primary input in the production process, has become a highly valued and increasingly scarce resource. And, federal legislation prioritizes the improvement and protection of water quality involving water resources nationwide.

Farmers and ranchers must understand water issues surrounding agricultural activities and social concerns involving water bodies located near their operations.

The first step in accomplishing this level of awareness is to understand federal and state laws regulating water quality, implementation of laws and pollutants identified as harmful to water bodies. This fact sheet explains the provisions outlined in the Clean Water Act that specifically address nonpoint source pollution and implications for agriculture.

The Clean Water Act

The Clean Water Act (CWA) regulates water quality for the U.S. pertaining to surface waters such as rivers, streams and lakes as well as groundwater, wetlands, and urban runoff. Originally the CWA focused on point sources of water pollution but was amended in 1987 to provide for nonpoint source (NPS) pollution control.

Point sources of pollution are identifiable, confined means for transporting and discharging pollutants, such as channels, ditches, conduits and tunnels. Municipal treatment facilities, manufacturing industries and large animal confinement operations are examples of potential point sources of pollution. In contrast, NPS pollution is the scattered discharge of natural and manmade pollutants into the natural environment. As defined by the CWA,

NPS pollution derives from diffuse, unregulated sources that typically include agriculture, urban and construction runoff over large areas. And, a defining feature of NPS pollution is that runoff contains pollutant materials that enter surface waters or ground water at rates greater than naturally occurring levels.

Water quality experts suggest that agricultural activity is a leading contributor to NPS pollution. Types of agricultural sources include cropland, feedlots, irrigation and drainage, livestock grazing, modifications of river/stream channels, construction, and livestock waste management.

The United States Environmental Protection Agency (EPA) is the authority appointed to implement CWA legislation. For the greater majority of Nevada, the Nevada Division of Environmental Protection (NDEP) implements provisions of the CWA focusing on the area that lies outside of its four designated wastewater management areas surrounding the urbanized areas of Carson City, Lake Tahoe Basin, Truckee Meadows and Washoe and Clark Counties.

Of particular interest to farmers and ranchers, are Sections 303 and 319 of the CWA. Section 303 requires states to establish water quality standards based on beneficial uses for a given water segment as well as existing information pertaining to that segment. Waters that do not meet established standards are placed on a list (Section 303 (d) list) of impaired, threatened waters. States must then assure that numeric limits are established for the individual pollutants impairing listed waters and that these limits are not exceeded. The established limits are referred to as Total Maximum Daily Loads (TMDLs). Section 319 of the CWA supports planning and education efforts to control NPS at the watershed level. It requires each state to develop a NPS Management Plan to improve the quality of impaired or threatened waters. In Nevada, NPS water management activities are primarily voluntary at this time, rather than regulatory, and emphasize education to raise public awareness and voluntary participation to improve water quality.

Understanding Beneficial Use

Beneficial use refers to water use that produces gains or benefits. In Nevada, beneficial uses historically include agricultural usage, such as irrigation and livestock watering. In addition to agricultural uses, beneficial uses currently include recreation, support of aquatic life, wildlife propagation, municipal drinking supply and industrial uses.

The amount of pollutants necessary to impair beneficial use depends on the existing or designated use of the waters in question. For example, streams used for human drinking supplies require stricter standards than water used to irrigate crops. Beneficial use must be consistent with federal and state law and are based on the following factors historical use, existing use, anticipated water use, public concerns, and requirements to prevent water quality deterioration.

Water quality standards require that appropriate water uses be specified, achieved and protected. The use and value of the water body must be identified in terms of its use as public water supply, recreational, industrial and agricultural purposes as well as to protect fish and wildlife.

When beneficial usage or water quality standards are established or revised in Nevada, the Nevada Environmental Commission must review and formally accept the proposed revisions. The commission represents several state agencies including Forestry, Mining, Agriculture, Health, Wildlife, and State Water Engineer. Additionally, the Governor appoints four citizen members who further address issues concerning agriculture, economic development, mining, and the environment. Nevada Division Environmental Protection provides public hearings to inform citizens of established or revised standards that are site specific to a water body. Citizens may comment at that time, either in writing or in person. Based on federal and state requirements, available water quality monitoring data, and public comment, the commission may decide to amend, adopt, or take no action concerning changes to established standards.

At this point, if dissatisfied with the commission's proposed decision, citizens may file a petition to review the procedures used by NDEP to establish or revise standards. The review is conducted and a judge of the State Supreme Court decides the outcome.

The public has a vested interest in the quality of our Nation's surface waters. The Clean Water Act requires States and authorized Tribes to hold public hearings on their water quality standards at least once every three years. Public hearings on water quality standards provide an opportunity for the public to become involved in the water quality standards setting process. Citizens may make recommendations on improvements or modifications in the standards during the public hearing process. Public hearings are a powerful vehicle through which citizens may make their concerns known to public officials.

Monitoring Water Quality

Originally, EPA was charged to regulate only point sources of water pollution. However, in 1987, the CWA was reauthorized to include effective NPS pollution control and water quality management programs nationwide. Currently, all states, including Nevada, are directed by EPA to monitor water bodies to assess NPS pollution; develop a statewide control program for NPS pollution; and implement Best Management Practices as means for pollution control.

Due to its diffuse nature, it is difficult to measure NPS pollution. In order to identify water bodies that are not in compliance with water quality standards, NDEP maintains a program that monitors over 100 sampling points in Nevada's 14 hydrographic regions and, every two years, provides a 303(d) list of impaired or threatened waters. In addition to these monitoring stations, intensive field studies of water quality are conducted on Nevada's major water systems including the Carson River, Colorado River Tributaries, Humboldt River,Truckee River, and Walker River.


NPS pollution is the scattered discharge of natural and manmade pollutants into the natural environment. As defined by the CWA, NPS pollution derives from diffuse, unregulated sources that typically include agriculture, urban and construction runoff. Water quality experts suggest that agricultural activity is a leading contributor to NPS pollution. Types of agricultural NPS may include: cropland, feedlots, irrigation and drainage, livestock grazing, changes to river and stream channels, construction, and waste management.

Due to its diffuse nature, it is difficult to take precise measurements of NPS pollution. In accordance with the CWA, Nevada has established water quality standards based on beneficial uses for its water bodies. NDEP maintains a program that monitors over 100 sampling points in Nevada's 14 hydrographic regions and, every two years, provides a 303(d) list of impaired or threatened waters. Each state is required to address listed waters by establishing TMDLs to specify measurable limits for individual pollutants and plan for pollution control of NPS at the watershed level.

Farmers and ranchers must learn about federal policy affecting water resource management, NPS and maintain an awareness of agricultural activities that could potentially impact water quality.

The first step in accomplishing this is to learn about federal and state laws regulating water quality and NPS programs in place to improve water quality controlling specifically for NPS pollutants.

Next, Best management Practices must be identified and implemented to control for potential NPS associated with agricultural activity.


* Donaldson, S. & M. Hefner. 2004. Water Quality Challenges Facing Our Community. Available online at:

* Nevada Division of Environmental Protection. 2002. Nevada's 303(d) List. Nevada Department of Conservation and Natural Resources. Carson City, Nevada. Available online at:

* Singletary, L. & J. Davison. 2003. Farm and Rangeland Water Quality Management: A Field Guide for Nevada's Agricultural Producers. Available online at:

Monday, February 9, 2009

Wild horses, elk threaten to overcrowd rangelands

Wild horses have long reigned as icons of freedom and the open West. But a federal lawsuit filed in Portland last week challenges that notion and highlights U.S. officials' increasing struggle to control exploding herds.

Thousands of more wild mustangs and burros roam Western rangelands than the land can support, a federal report has found, and if nothing is done, the problem will only get worse.

At the same time, the number of unwanted animals in federal holding facilities -- including one in Oregon -- has tripled since 2000 as adoptions plummet. The cost of caring for the animals, the October report said, threatens to overwhelm the U.S. Bureau of Land Management's Wild Horse and Burro Program budget.

The issue landed in court after Loren and Piper Stout, an eastern Oregon ranching couple, were banned from grazing their cattle on land southeast of Dayville, a Grant County hamlet about 30 miles west of John Day.

The Stouts contend that their cattle were blamed for damage to rangelands that was actually caused by wild horses. Their suit against the U.S. Forest Service, filed Thursday in U.S. District Court, seeks to force federal authorities to control wild horses on the 62,000-acre Murderers Creek allotment.

"They have let it get out of hand, and we are getting blamed for it," Loren Stout, 52, said of the government's management of wild mustangs. "Horses are real tough on resources, and they are out there 12 months of the year."

The couple grazed their cattle on the rugged allotment from 1996 until October 2007, when they were forced to remove the herd as the result of a complaint in federal court by the Oregon Natural Desert Association, a 1,200-member environmental group in Bend.

The association alleged that the Stouts' cattle threatened endangered steelhead in Deer Creek and Murderers Creek.

But the Stouts contend that the damage to stream banks and rangeland came from elk and wild horses. They say in their lawsuit that more than 500 wild horses may be roaming the allotment, well over the 100-mustang limit recommended in the Malheur National Forest management plan.

Not only that, the Stouts say, the Murderers Creek range and streams would be in better shape if their cattle still grazed there. Cowhands on horseback, they said, kept the mustangs and elk on the move, preventing them from overgrazing and trampling stream banks.

"The cattle are only on the range 12 weeks a year during the summer when the adult steelhead have left the stream and after steelhead fry have emerged," said Scott W. Horngren of Portland, the Stouts' attorney. "The horses and elk are on the range 24/7, all year."

The Forest Service "is trying to address this concern about steelhead by focusing on one user of the range" -- the Stouts' cattle -- Horngren said.

Instead, Loren Stout said, the government and environmentalists should look at all resource users, including mustangs and elk.

Forest Service spokesman Jeff Shinn of the Malheur National Forest in John Day acknowledged that the number of mustangs roaming the Murderers Creek range is "at least twice our appropriate management level."

"There are some definite impacts from the horses and elk," he said.

A recent government count by helicopter tallied 115 wild horses on the allotment, plus estimates of another 115 hidden by thick timber, Shinn said. A count by horseback riders three years ago found 430 wild mustangs, whose populations typically grow by 20 percent a year.

The Forest Service gathered 134 wild horses from the allotment in 2007-08 and another roundup of an undetermined number is set for this year, Shinn said.

Regardless of how many mustangs roam around Murderers Creek, few would dispute that growing herds are a problem.

The October federal report, issued by the U.S. General Accounting Office, said 33,100 mustangs and burros roam 29 million acres of BLM-managed land in 10 Western states -- 5,900 more than the land can sustain.

"There is no natural check on their populations," said Brent Fenty, spokesman for Bend's Oregon Natural Desert Association. "There are certainly too many horses on public lands throughout the West."

The report also tallied 30,088 horses and burros in 11 federal holding facilities, up from 9,807 eight years ago. The cost of running the sanctuaries climbed from $7 million in 2000 to $21 million in 2007, the report said.

Complicating matters, adoptions through the BLM's "adopt-a-horse program" fell a whopping 36 percent in 2007 compared with 1990s levels. The BLM blames, in part, rising hay and fuel costs.

In Oregon, the GAO estimated, 2,473 wild horses roam the high desert and forests. About 400 are penned at the BLM's Wild Horse Corrals near Burns, up from 175 in August, said Gary Rose, a BLM spokesman in Burns.

And the problem won't go away any time soon. If left alone, the GAO report said, U.S. mustang and burro populations will balloon to 50,000 by 2012.

The Stouts, meanwhile, hope their lawsuit helps them regain the right to graze cattle at Murderers Creek, which takes its name from an 1860s battle with Native Americans that killed eight prospectors, according to "Oregon Geographic Names."

About that time, Piper Stout's great-great-great-grandfather, John Hyde, came from Tennessee to homestead in Grant County.

"If somebody wants to come after us for something we're not doing," Loren Stout said last week, "let's get it on."

Richard Cockle;

Thursday, February 5, 2009

Lawmakers propose land office reforms

By Heath Haussamen 2/5/09 7:11 AM

In response to a controversy involving the State Land Office and a Las Cruces developer, three Doña Ana County lawmakers are proposing reforms that would increase transparency and accountability in the land commissioner’s dealings.

The proposals follow Attorney General Gary King’s finding fault last year with Land Commissioner Pat Lyons’ leasing of land on Las Cruces’ East Mesa to Philip Philippou so it could be developed. The AG’s formal opinion on The Vistas at Presidio land deal states that the lease agreement’s (pdf) method of compensating Philippou’s company is “not comprehended by and in conflict with” a statute that allows developers who improve land for the state to be compensated only for the appraised value of the improvements.

In the lease, the land office also agrees to compensate Philippou for other project costs and 40 percent of the change in value of the land as a result of the improvements.

The first bill in the package proposed by Reps. Nate Cote and Jeff Steinborn, and Sen. Steve Fischmann, all Las Cruces Democrats, directly deals with the issue identified in the AG opinion. Cote’s House Bill 607 and Fischmann’s Senate Bill 474 would make clear that developers can be compensated for tangible improvements to the land but nothing else.

The other bills in the package are:

• Steinborn’s House Bill 606, which would require the land office to issue development leases only following public notice and a competitive bidding process.

• Cote’s House Bill 610, which would require the land office to develop uniform systems for classifying accounts, budgeting and reporting.

• Steinborn’s House Bill 605, which would require local government review before the land office’s development leases take effect.

• Fischmann’s Senate Bill 475, which would require that the AG review development leases before they take effect.

Steinborn’s bill that requires the land office to follow a competitive bidding process is significant because, in the Las Cruces situation, Lyons bypassed his own bidding process — which he’s not currently required by law to use — and leased the thousands of acres of land in question to Philippou in December 2006. Months earlier, while the Republican Lyons was running for re-election, Philippou gave $20,500 to a political action committee run by lobbyists he employs. The PAC gave most of it to Lyons’ campaign, and the lobbyists gave another $3,600. After Lyons leased the land to Philippou, the developer gave another $6,000 to Lyons.

On a conference call about the bills on Wednesday, Steinborn called the Las Cruces situation “ground zero” for “problems” in the land office that affect the entire state because Lyons entered into similar agreements for land in Albuquerque, Rio Rancho, Santa Fe and elsewhere. The AG has refused to back up his opinion with a lawsuit, and Lyons has effectively ignored it.

Cote said the legislation is an important response to the concerns of his constituents and others in the Las Cruces area, and it shouldn’t be viewed as an attempt to impede the work of the land office.

“The public, the people of my district and New Mexicans, want government accountability,” Cote said.

Fischmann said it’s now clear that the land office “was somehow operating out of sync with what the public needs were,” but Steinborn said he hopes that, in spite of that, Lyons will support the reform proposals.

A spokeswoman for Lyons did not immediately respond to a request for comment.

Monday, February 2, 2009

States fail in latest prairie dog report card

While groundhogs will get all the attention Monday, a report being issued by an environmental group says their cousins, the prairie dogs, are in dire straits across the West.

WildEarth Guardians says in its report to be released Monday that North America's five species of prairie dogs have lost more than 90 percent of their historical range because of habitat loss, shooting and poisoning.

It grades three federal land management agencies and a dozen states on their actions over the past year to protect prairie dogs and their habitat.

Not one received an A.

Most grades even dropped from the previous year, but Arizona improved to a B — the highest grade of all the states in prairie dog country. That state reintroduced 74 black-tailed prairie dogs to a small southeast parcel in October.

New Mexico, home to the Gunnison's prairie dog and black-tailed prairie dog, earned a D — the same as last year — because, the group said, state wildlife officials weren't actively conserving prairie dogs.

"It's hard to see the prairie dogs that are missing when you drive across the West because our modern society has no perception about what it was like before we started poisoning prairie dogs," said Lauren McCain, WildEarth Guardians' desert and grassland projects director.

McCain said prairie dogs are an important part of a grassland ecosystem. They are food for hawks, golden eagles, foxes and endangered black-footed ferrets, and their burrows offer shelter for a variety of other species.

McCain said all the animals need federal endangered species protections.

Of the five species, the Utah prairie dog is classified as threatened and the Mexican prairie dog as endangered. The U.S. Fish and Wildlife Service has issued preliminary findings that the black- and white-tailed prairie dogs may warrant federal protection, and the Gunnison's prairie dog is a candidate for protection in part of its range.

Until Arizona's reintroduction, the animals had not been seen in that state for nearly 50 years.

"We're really pleased with the success to the point where we're getting the process ready to start another reintroduction," said James Driscoll, an Arizona Game and Fish Department biologist.

Many people in the West, especially ranchers, consider prairie dogs varmints that destroy grass and cause erosion.

McCain said misperception has resulted in wasteful government programs. She said various agencies have financed and encouraged the poisoning of prairie dogs for years while other agencies pump millions of dollars into recovery efforts aimed at other species that rely on the prairie dog.

"We're hoping that the report card will highlight some of the these inconsistencies in government management of wildlife," McCain said. "These are species that we really do need to protect instead of wasting taxpayer dollars, which is a big concern for a lot of people."

Of the federal agencies, the Bureau of Land Management received the lowest grade: D-minus, the same as last year. The report accuses the agency of exempting energy development companies from complying with rules that would protect prairie dog colonies and habitat.

Bill Merhege, deputy state BLM director for lands and resources in New Mexico, said the agency takes numerous steps, such as moving well pads and roads to avoid prairie dog colonies and prohibiting prairie dog control on land it manages.

"We do what we can on public lands," Merhege said. "Unfortunately, with interspersed landownership, what you do on one section doesn't necessarily follow through on another."

The group graded the U.S. Fish and Wildlife Service at C, up from D the previous year, while the U.S. Forest Service stayed at D.

The group gave an F grade to Kansas, Nebraska and North Dakota. Colorado, Montana, South Dakota and Utah got D grades, and Wyoming earned a D-plus.