Friday, April 30, 2010

Sagebrush stirrings

By David Harrison, Stateline Staff Writer

Utah State Representative Chris Herrod has gotten a lot of attention since his bill to explore seizing federal land through eminent domain became law last month. Colleagues in other Western legislatures have called seeking tips on replicating his success in their states. And the law was a topic of discussion this week when U.S. Interior Secretary Ken Salazar paid a visit to Salt Lake City.

A majority of the land in Utah, as in many Western states, is owned by the federal government. Herrod’s measure treats the federal government like any other property owner in the state. It allows Washington to keep the rights and title to the land but not ultimate jurisdiction over it. That jurisdiction rests with Utah, and it means that federal land holdings may be subject to state eminent domain authority.

To Herrod, the law is an expression of long-simmering anger. Last year, he watched as the new Obama administration canceled 77 leases to oil and gas companies that had been approved by President George W. Bush. Then he saw a leaked administration memo that purported to list 14 sites as possible new national monuments, two of them in Utah.

Outrage over federal land policies is nothing new in Western states, where local officials have long sought to develop public land and collect tax revenue from it. Now, with Democrats in charge in Washington and conservative activists energized in their opposition towards the Obama administration’s health care, energy and budget policies, some in the West are trying to counter what they see as federal heavy-handedness in land-use matters. Herrod, a Republican, has spoken at Tea Party rallies trying to tap into that anger, although he is wary of calling his bill a “Tea Party bill.”

“It’s a natural outflow of the frustration,” he says. “We kind of feel like we’re serfs. We have this land and we have to beg Washington to see if we can use it.”

So far, there are few signs that the West is gearing up for a full-scale renewal of the Sagebrush Rebellion, the 1970s movement that challenged Washington’s control of public lands. While numerous bills have cropped up in Western legislatures attempting to wrest control of land from the federal government, few have been as radical as Herrod’s and few have received anywhere near the same attention. By contrast, when President Bill Clinton designated the Grand Staircase-Escalante National Monument on 1.9 million acres of public land in southern Utah, he touched off a fury in Western states that had many comparing it to the earlier uprising.

“I can’t see really anything in the Obama administration that would be cause to start another Sagebrush Rebellion,” says John Freemuth, a political scientist at Boise State University.

For instance, Interior Secretary Salazar is a Colorado rancher who last year decided to keep wolves off the endangered species list, furthering a Bush-era policy that angered environmentalists but pleased Western ranchers. The administration has spurned calls to list the sage grouse as an endangered species, a move that would close off vast swaths of land to development. Instead, Salazar has indicated he is willing to let states work through their own procedures for protecting the birds, which scientists from the U.S. Fish and Wildlife Service say need to be protected.

George Nickas, executive director of the environment group Wilderness Watch, is not worried. The Utah bill is little more than “political theater,” he says. “Every so often some of these folks in these states kind of rebel. They like to pick on the federal government and say ‘We resist any federal government control on these lands.’ My guess is it’s wrapped up in the anti-Obama, anti-federal government, anti-Washington, D.C., rhetoric that seems to be so hot right now.”

Herrod says his bill was intended to do more than send a message. He wants to use money generated from developing public lands to fund Utah schools. And he believes that if and when the law is subjected to a federal court test, it could win a 5-to-4 decision in the U.S. Supreme Court. Even some of Herrod’s supporters are skeptical of that view. “I’d say go for it but I think that’s a bit of a stretch,” says Lynn Luker, a lawyer and Republican state representative in Idaho.

Luker sits on the State Affairs Committee in the Idaho House, which last month approved a measure to explore suing the federal government to get control of parcels of federal land in Idaho. Members of the committee say that claiming the land could open it up for logging, which, Luker says, would reduce the risk of forest fires while also providing electricity from burning dead timber.

Other Western states are looking for ways to take on the federal government. Wyoming lawmakers approved a resolution that claimed sovereignty from Washington under the 10th Amendment. An almost identical resolution was debated but defeated in Nevada last year. Montana lawmakers voted on — and turned down — a bill to assert the state's right to manage its own wolf population.

It’s still unclear whether Utah’s sweeping eminent domain legislation is a sign of things to come. “We’ve got this sort of opening shot from the Utah Legislature, and I think it remains to be seen whether any other Western state will adopt or pursue similar sorts of policies,” says Robert Keiter, a law professor and public lands expert at the University of Utah.

Utah’s anti-Washington sentiment did not stop state officials from warmly receiving Salazar this week as he tried to smooth over differences. But lawmakers and Governor Gary Herbert grilled the interior secretary on Utah’s effort to open old roads in federally protected areas and on the new eminent domain law.

Salazar said he got the message.

Tuesday, April 27, 2010

Lawsuit to Be Launched to Protect Endangered Species in Arizona and New Mexico National Forests

ALBUQUERQUE, N.M.— Today the Center for Biological Diversity formally notified the U.S. Forest Service that it will sue the agency for failing to protect endangered species in Arizona and New Mexico national forests, where it continues to approve projects that destroy endangered species habitat without carrying out legally required monitoring of the species and their habitat. The lawsuit will involve at least nine threatened and endangered species, including the Mexican spotted owl, southwestern willow flycatcher, New Mexico ridge-nosed rattlesnake, Chiricahua leopard frog, Apache trout, Chihuahua chub, loach minnow, spikedace, and ocelot.

“The Forest Service’s refusal to honor its responsibility to monitor and protect endangered species is not only illegal but potentially devastating to wildlife,” said Taylor McKinnon at the Center for Biological Diversity.

On June 10, 2005, the U.S. Fish and Wildlife Service, the agency charged with enforcing the Endangered Species Act, issued a formal “biological opinion” on the impacts of implementation of forest plans for Arizona and New Mexico’s 11 national forests on threatened and endangered species. The document requires the Forest Service to monitor populations and habitats for the species that occur on the forests.

In October 2008 the Forest Service issued a report admitting that it had not done the monitoring. It also conceded that it might have exceeded the amount of harm, or “incidental take,” allowed by the biological opinion. On April 17, 2009, it requested that the Fish and Wildlife Service redo the opinion.

The Forest Service stated that it “[w]ill likely soon exceed the amount of take issued for at least one species, the Mexican spotted owl,” and that “it has become apparent that [we are] unable to fully implement and comply with the monitoring requirements associated with the Reasonable and Prudent Measures for several species (including MSO) in the [Biological Opinion].” The Fish and Wildlife Service has not responded to this letter or reinitiated formal consultation on the forest plans. Despite that, and despite its admitted failures, the Forest Service has continued to authorize forest-management activities that adversely affect the species in question.

“By refusing to monitor endangered species or ensure against their harm, the Forest Service is violating the Endangered Species Act and risks doing irreversible harm to species that are struggling to survive,” said McKinnon.

Today’s notice of intent to sue also requests that the Forest Service consult with the Fish and Wildlife Service about new information affecting endangered species. The new information includes impacts of climate change, increased threat of invasive species, severe wildfires, recent sighting of a critically endangered ocelot in southern Arizona, and new critical habitat designations for the Gila chub, southwestern willow flycatcher, loach minnow, and spikedace.

Meanwhile, the Forest Service has begun writing new forest plans for Arizona and New Mexico that roll back protections for threatened, endangered, and other species. A new draft forest plan released for the Coronado National Forest in southeastern Arizona eliminates virtually all forest-wide protective standards for wildlife and their habitat – including the requirement to maintain viable populations of species in the forest.

“The big picture for endangered species recovery in southwestern national forests has become pretty bleak,” said McKinnon. “The Forest Service is adding insult to injury by not only refusing to monitor threatened and endangered species, as already required under the law, but also rolling back species protections in new forest plans.”

Friday, April 16, 2010

President Obama Launches Initiative to Develop a 21st Century Strategy for America’s Great Outdoors

Effort will Promote and Support Community-Level Efforts to Conserve Outdoor Spaces

WASHINGTON, D.C. – President Barack Obama signed a Presidential Memorandum today establishing the America’s Great Outdoors Initiative to promote and support innovative community-level efforts to conserve outdoor spaces and to reconnect Americans to the outdoors. The President spoke before leaders representing the conservation, farming, ranching, sporting, recreation, forestry, private industry, local parks and academia communities from all 53 states and territories.

The Presidential Memorandum calls on the Secretaries of the Interior and of Agriculture, the Administrator of the Environmental Protection Agency (EPA), and the Chair of the Council on Environmental Quality (CEQ) to lead the Initiative, in coordination with the Departments of Defense, Commerce, Housing and Urban Development, Health and Human Services, Labor, Transportation, Education, and the Office of Management and Budget. The Initiative will support a 21st century conservation agenda that builds on successes in communities across the country, and will start a national dialogue about conservation that supports the efforts of private citizens and local communities.

“Today, with 80 percent of Americans living in cities and suburbs, it is more important than ever for people to have access to outdoor space. Just as we cherish our childhood memories of hiking and sledding, fishing and camping, and just as we enjoy spending time outdoors with our families, we must guard these places and traditions for new generations,” said CEQ Chair Nancy Sutley. “Through this Initiative we hope to identify new opportunities to work with Americans on a modern approach to conservation that begins at the ground level, and to reinvigorate the national conversation about our outdoors.”

“Since President Theodore Roosevelt held the first White House conference on conservation in 1908, we as Americans have taken extraordinary steps to protect our land, water, wildlife, and history for future generations, but today the places we love face new challenges that require new ideas and new strategies to solve,” said Secretary of the Interior Ken Salazar. “President Obama’s America’s Great Outdoors Initiative will start a much-needed dialogue about conservation in our country so that we can hear directly from Americans about the places they care about and how they are working to protect them. This is about listening, learning, and finding common-sense ways to support the good work that is happening in communities across the country.”

“President Obama’s America’s Great Outdoors Initiative will play an important role in confronting the serious challenges our natural resources face today: climate change, air and water pollution, landscape fragmentation and loss of open space,” said Agriculture Secretary Tom Vilsack. “This effort will bring Americans from across the country together to look for new approaches to protect our national treasures. And it will highlight the importance of working across ownership boundaries to restore and conserve both private and public lands in a way that recognizes that conservation and economic vitality are inextricably linked.”

“Too many of our cities have limited access to parks for children, low-income residents and communities of color. Improving access to open areas and green space in our urban communities should be a focus of a 21st century conservation strategy,” said EPA Administrator Lisa P. Jackson. “It makes me proud that generations to come will know that we took action to preserve, restore and protect vital natural treasures.”

The full text of the Memorandum can be found at

Sunday, April 11, 2010

Idaho rancher may lose grazing permit

Mike Hanley, a well-known rancher who helped Idaho Sen. Mike Crapo pass legislation to protect ranching and wilderness in the remote southwest corner of the state, could lose his privileges on public land.

The U.S. Bureau of Land Management has proposed denying a permit to Hanley, who lives in Jordan Valley, Ore., and grazes his cattle in Owyhee County. Hanley is a historian and author who reached out to environmentalists seeking common ground on wilderness and grazing issues in Owyhee County.

He said he could not talk about the BLM decision, which he is appealing, upon advice of his lawyer. But he said it had nothing to do with the legislation passed in 2009, which he still supports.

It has a lot to do with the Western Watersheds Project, which had challenged 68 grazing permits in Owyhee County demanding the BLM do extensive environmental reviews to protect water quality and endangered species. U.S. District Judge B. Lynn Winmill had upheld these challenges, and upon further lawsuits Hanley and others had been forced to reduce grazing.

Now he is in the same boat as Jon Marvel and Western Watersheds Project. The BLM has proposed taking away the project's grazing permit on federal lands connected with its Greenfire Preserve near Challis. Hanley's situation demonstrates that it's not easy for the BLM to take away the permits from either ranchers or the project.

BLM Owyhee Field Manager Buddy Green said in his decision that from 2002 to 2009, Hanley "repeatedly grazed the Trout Springs Allotment outside the season of use," put out more cows than he was allowed, and had cows on the allotment in 2009 when it was closed.

"This conduct is unacceptable, and therefore I have concluded that Hanley Ranch Partnership's record of performance under the existing federal grazing permit/authorization has been unsatisfactory," Green said.

Green also said Hanley had been out of compliance repeatedly from 1992 to 2001.

Hanley's attorney, Alan Schroeder, has filed a response saying that the BLM's decision would harm Hanley's ability to graze his cattle on his private property and that fencing off that property from the public land, assuming he could do that legally, would cost him more than $30,000.

The case now is before the Department of Interior's Office Hearings and Appeals.

Katie Fite, Western Watershed Project's Biodiversity director, said Hanley has been able to continuously flout grazing rules because of years of political interference. A host of BLM range conservationists and managers were transferred when they tried to enforce the terms of the permits over the last two decades, she said.

"They had a lot of political power when Larry Craig was still around," Fite said, referring to the former U.S. senator from Idaho.

But now, after more than 10 years of litigation, WWP has won a settlement from the BLM that it would end grazing practices Fite said dramatically lowered the water table, dried up streams in the Trout Springs area, and threatened the rare redband trout that live there.

"You're talking a millennium before it recovers," Fite said.

Schroeder declined comment, saying he did not want to fight his case in the media.

Hanley's appeal now will be decided by an administrative law judge.

Rocky Barker: 377-6484

Thursday, April 8, 2010

Judge hears grazing arguments

How to gauge harm to threatened steelhead was a central question in a three-way courtroom battle last week between ranchers, environmentalists and the federal government.

U.S. District Judge Ancer Haggerty heard arguments in the case Tuesday, March 30, in Portland.

The debate stems from a legal challenge against cattle grazing in Eastern Oregon's Malheur National Forest. An environmental group, the Oregon Natural Desert Association, claims the federal government violated the Endangered Species Act by permitting grazing to degrade steelhead habitat in the national forest.

A key measure of cattle grazing's impact on steelhead is bank alteration, which is basically the percentage of the streambank that's altered by hoof prints.

Ranchers on 13 allotments in the forest are expected to keep bank alteration below 10 percent to 20 percent, depending on the area, as part of the federal requirements that allow grazing.

The environmental group claims that exceeding those thresholds is equivalent to killing steelhead, an "unlawful take" that constitutes a violation of the Endangered Species Act.

Ranchers who rely on the forest to graze their cattle allege those thresholds were arbitrarily set by the federal government and aren't based on the best available science, as required by the ESA.

"There isn't a connection between bank alteration and actual death and injury to steelhead," said Elizabeth Howard, an attorney representing ranchers during oral arguments. "There isn't any evidence of that."

David Becker, an attorney for the Oregon Natural Desert Association, countered that bank alteration has been linked to increased sedimentation, higher stream temperature and damage to fish egg-laying habitat.

"Habitat damage occurred and that was enough to show take," said Becker.

The group claims past "exceedances" of the bank alteration thresholds indicate the federal government's grazing rules for the national forest haven't been properly enforced.

No further evidence is needed to prove a "take" of protected species, he said. "There are no photographs of sediment being knocked down and fish scrambling away."

Both the environmental group and the ranchers are challenging the validity of a "biological opinion" and related documents issued by the federal government in 2007, which set standards for grazing in the forest.

The Oregon Natural Desert Association claims the government delegated too much responsibility for riparian health to the ranchers, without reasonable assurances that its conservation measures would be followed.

The ranchers, meanwhile, contend that the federal government should use more accurate standards to measure the viability of steelhead habitat in the allotments.

"What we really should be evaluating is bank stability," said Howard, rather than bank alteration.

The federal agencies involved in the lawsuit - the National Marine Fisheries Service and the U.S. Forest Service - had to defend the bank alteration standard while acknowledging its limitations.

Stephen Odell, an attorney representing the federal government, disagreed with the ranchers' view that bank alteration is an arbitrary standard. It's a legitimate method that will continue to be used for measuring riparian health, he said.

When the thresholds for alteration are exceeded, the federal agencies evaluate the damage and find ways to remedy it in compliance with the Endangered Species Act, he said.

However, bank alteration is just one method for gauging impacts from grazing, Odell said. Other factors, such as stream vegetation, must also be considered, he said.

"Bank alteration itself is not sufficient to establish a take," Odell said.

The federal government is caught between two groups which claim its standards are either too lenient or too restrictive, he said.

In this situation, the court should defer to the agencies' expertise and let the federal government's decision stand, Odell said.

Oral arguments on the legal validity of the biological opinion were held March 30 in a federal district court in Portland.

Judge Haggerty said he's taking the matter under advisement and will "get a ruling out shortly."

Meanwhile, ranchers expect to turn cattle out on the allotments between May 15 and June 1.

Wednesday, April 7, 2010

Idaho wool growers file lawsuit over bighorns

The Idaho Wool Growers Association and Shirts Brothers Sheep has filed a lawsuit against the Idaho Department of Fish and Game concerning bighorn sheep management.

The groups in the lawsuit filed earlier this week contend Fish and Game has not lived up to a 1997 agreement the groups say was designed to protect domestic sheep growers from potential adverse effects to their businesses from bighorn sheep introductions.

The groups are asking for unspecified damages "in an amount to be proven at trial."

The lawsuit comes several months after the Payette National Forest released a set of proposed updates to its plan to keep domestic sheep from intermingling with wild bighorns, citing disease transmission that kills bighorns.

One alternative in the draft calls for reducing domestic grazing by about 60 percent in Hells Canyon and allotments in the Salmon River Canyon.

"The Idaho Department of Fish and Game took no action to block the Forest Service from modifying the grazing allotments for Shirts and Shirts Brothers and took insufficient action to prevent Shirts and Shirts Brothers from being harmed by these actions," the lawsuit says.

The Idaho Department of Fish and Game did not immediately return a call from The Associated Press on Saturday.

Idaho bighorn numbers have dwindled by half since 1990, to about 3,500 animals.

The 1997 agreement with wool growers included Fish and Game, federal land management agencies, and a bighorn sheep conservation group. The lawsuit contends that in 2007 the Forest Service began reducing domestic sheep grazing to protect bighorns.

Crapo seeks tax credits for endangered species work

In 2008, U.S. Sen. Mike Crapo accomplished part of his plan to encourage landowners to work with the Endangered Species Act, securing a permanent tax deduction for species expenditures on private land.

But that was only half of what Crapo, R-Idaho, set out to do. He’s now trying once more to get Congress to approve similar tax credits, competing with a number of other tax proposals in the wake of the mortgage crisis and recession.

The senator on March 24 introduced the Endangered Species Recovery Act of 2010, which would provide credits for both habitat protection easements and restoration work. Co-sponsored by eight other senators both Republican and Democrat — including fellow Idahoan Jim Risch, Sam Brownback of Kansas, Olympia Snowe of Maine and Jon Tester of Montana — it’s been referred to the Senate Finance Committee, where Crapo is a member.

The bill is another step in Crapo’s pursuit of piece-by-piece ESA reform. On Friday, he told the Times-News that he believes he has support for the bill’s substance, but is concerned its cost may once again block its passage. The credits would cost nearly $1 billion in the first five years and more than $1 billion in the second five years.

“There’s only a certain amount of flexibility in the budget for that sort of” cost, he said.

Pay-as-you-go rules — where the Senate must offset every new expense with a cut somewhere else — stopped the bill the last time and are still a concern now. But the new version’s odds might improve this fall, Crapo said, once the Senate starts looking at tax packages focused on broader issues than just mortgages. The credits, he said, would help generate natural-resources jobs in rural areas that desperately need the employment right now.

“It’s hard to predict right now how that will play out,” he said of passing the bill.

Crapo has previously said large-scale ESA reform would be very difficult. But he’s considering proposing a broader change once his tax credit passes: paring down the current “centralized command and control” approach to species listing and recovery in favor of consensus-based decisions involving local governments and groups.

Whether he pursues it will depend heavily on the makeup of Congress after this fall’s election, he said. And, of course, it will depend on when he gets the rest of his tax incentives passed.

“We’re not going to stop until we get the entire bill put into place,” he said.

Nate Poppino may be reached at or 735-3237.