Sunday, April 24, 2011

Pearce pushes wilderness rollback


LAS CRUCES -- A proposal backed by Congressman Steve Pearce, R-N.M., would roll back wilderness-like protections from three Do a Ana County mountain ranges, as well as other land throughout the West.

The bill was applauded by local off-road vehicle enthusiasts and ranchers, who've complained the designations keep them off public lands, but condemned by wilderness proponents, who said it is the latest in a series of attacks by Pearce on the environment.

In Do a Ana County, the bill, H.R. 1581, would get rid of about 32,700 acres of wilderness study area, a temporary status treated like wilderness, which is the highest level of protection for federal lands.

A look back

Congress directed agencies to catalogue public lands in the 1970s and evaluate them for wilderness potential. In 1993, the U.S. Bureau of Land Management made its recommendations about potential wilderness in New Mexico.

In Dona Ana County, some 181,100 acres -- including in the Organ Mountains and West Potrillo Mountains -- were declared suitable for wilderness, while about 32,700 acres weren't, according to the report.

Despite the recommendations, Congress never took action, and the inventoried lands in Do a Ana County have been in a limbo state since.

Full-fledged, permanent wilderness status prohibits the use of mechanized vehicles -- at the heart of most contention surrounding the designation. Indeed, that was the focus a five-year debate about creating wilderness in Dona Ana County that cooled last December with the expiration of a bill by U.S. Sen. Jeff Bingaman, D-N.M.

Off-roading debate

No land in the in the Robledo or Sierra de Las Uvas mountains, in the west and northwest Do a Ana County, was recommended suitable for wilderness in 1993. They're among the temporary wilderness designations that would go by the wayside, if Pearce's bill were passed. About 8,600 acres in the West Potrillos, located in the southwestern part of the county, also would be removed.

Both are areas popular among off-road vehicle enthusiasts. But environmentalists contend they're scenically and ecologically valuable areas that merit wilderness protection.

Told about Pearce's proposal, ATV and off-road enthusiast Bob Duffey of Las Cruces said he favors removing some wilderness study area designations. The off-roading community, for the most part, uses public lands responsibly, he contended.

"There's enough land for everybody," said Duffey, a world champion motorcyclist. "We're not the big enemies they think we are."

Duffey pointed out that other states, including Utah, have benefited economically from promoting ATV recreation.

A notice sent by Pearce and two other sponsors soliciting support from other congressmen noted a number of off-roading, four-wheeling and logging groups that back the bill.

But Las Cruces City Councilor Sharon Thomas, a wilderness proponent, said the bill is a step backward. Getting rid of the designations would open up "very fragile lands" to more off-roading and development, she said.

"They're already being grazed upon, and that's probably enough," she said. "That's some risk; I don't think we should add anymore risks."

Forests, too

In addition to scrapping certain wilderness-study-area acreage, the bill would get rid of roadless areas within national forests that also haven't been recommended to become wilderness.

If passed, said Pearce spokesman Eric Layer, the lands would be managed as multiple-use, "which would allow for more recreational access and responsible resource development."

"Congressman Pearce is co-sponsoring this bill because it is a common-sense approach that simply codifies the recommendations of two federal agencies," he said in an email. "This is about seeking a common-sense solution to a land management issue in the West."

Should a wilderness study area designation be removed, the BLM would fall back to its long-term management plan, said Tom Phillips, with the agency's Las Cruces office. That offers protections for certain areas, including for environmental resources. For instance, if the Organ Mountain study area were lifted for some reason -- though that's not an actual proposal in the recent bill -- there would still be an administrative protection in place, he noted.

The legislation is likely to wind up a political statement only, given it's not backed by Bingaman, who chairs the Senate Energy and Natural Resources Committee, the panel that reviews wilderness bills. And the Senate and presidency are controlled by Democrats.

Bingaman, in an emailed statement, said H.R. 1581 would "take away existing protections from millions of acres of roadless areas managed by the Forest Service and BLM without properly considering the merits of each specific area."

"It could negatively impact the clean water we rely on that comes from these watersheds, and it could harm the fish and wildlife on our public lands that hunters and anglers use," he said. "For those reasons, I would oppose this legislation if it came to the Senate."

Pearce in 2008 introduced legislation to counter a wilderness proposal circulating in Do a Ana County. It would have eliminated wilderness study areas, while creating two new designations that would have restricted certain development while encouraging ranching. It never passed.


Now, the BLM manages temporary wilderness conservatively.

Phillips described that as a "non-impairment standard," meaning the agency is attempting to preserve the lands, in case Congress ever decides to declare them permanent wilderness.

Some roads through temporary wilderness have been closed off, Phillips said. Still, there are some allowed routes, called "ways," Phillips said. Drivers, including ranchers and hunters, can use those roads, though they're not maintained routinely.

Also ranchers -- because wilderness allows ranching activity to continue -- can enter the areas with equipment to maintain water tanks periodically.

The BLM doesn't permit new roads in wilderness study areas, Phillips said, though he acknowledged the public does cut new, unauthorized dirt tracks.

If temporary wilderness was removed, Phillips said the agency could consider OK'ing new roads, as long as the area didn't have another type of protection under the agency's long-term plan. Projects would be evaluated on a case-by-case basis, he said.

"That's what we do now on land that's not WSA," he said.

Frank DuBois, a former New Mexico agriculture secretary and outspoken critic of the former Dona Ana County wilderness proposal, said he's aware of utility corridor projects that have "been delayed or re-routed at great expense" because of temporary wilderness. And one Dona Ana County rancher recently experienced a five-month wait while trying to get an OK to revamp a dirt tank, he said.

The proposed legislation isn't unreasonable, considering the BLM didn't recommend the areas be granted permanent status, DuBois said.

"I think the legislation is the ultimate in common sense," he said.

However, just because the BLM didn't recommend that these areas become wilderness does not preclude residents from seeking the designation independently, said Las Crucen Jeff Steinborn, a New Mexico Wilderness Alliance director who helped spearhead the legislation to create new wilderness. The bill, if passed, would hurt quality of life, hunting and recreation locally, Steinborn contended.

"To unilaterally roll back the protections makes no sense," he said. "It's not the type of vision most of us espouse in this county."

Diana M. Alba can be reached at (575) 541-5443.

Friday, April 15, 2011

Complaint Lodged With Agency Over Cow's Death

        The Catron County Commission has lodged a complaint alleging that state Game and Fish Department biologists tried to alter the finding of a federal investigation into a cow's cause of death.
        At stake in the verdict by Wildlife Services, a U.S. Department of Agriculture agency, is whether the cow's owner can receive compensation for the loss.
        If Wildlife Services confirms that a cow was killed by a Mexican gray wolf, an endangered species, a rancher can be reimbursed $747. But if the finding is not definite, if a wolf kill is only considered "probable," the rancher is not eligible for compensation.
        According to Catron County officials, two Wildlife Services employees, as well as the county's own "wolf incident investigator," concurred that a cow discovered Jan. 18 near the Arizona border had been killed by a wolf. Catron County officials allege Game and Fish biologists sought to change that conclusion to a "probable" wolf kill.
        According to Catron County's own news release issued this week, Game and Fish Director Tod Stevenson denied that his staff tried to modify the Wildlife Services finding from "confirmed" to "probable" wolf kill, but simply suggested federal personnel take into account the presence of feral dogs in the area of the cow carcass.
        The Game and Fish Department is looking into the matter, but administrators won't discuss the case at this time, said spokesman Lance Cherry.
        In response to emailed questions, Alan May, Wildlife Service's New Mexico director, said the exchange between his staff and Game and Fish employees in the case "was appropriate."
        During their meeting April 6, Catron County commissioners complained about the matter to Stevenson and two Game Commission members. The Catron commission in late February also filed a complaint with Gov. Susana Martinez asking for a review of the Game and Fish biologists' actions.
        "We have taken a no-wolf stand," Catron County Commission Chairman Hugh McKeen said in a written statement directed at the governor. "I'm requesting that you take a no-wolf stance, too."
        Martinez spokesman Scott Darnell said members of the governor's staff discussed Catron County's concerns with Game and Fish staff, adding: "We have instructed the Department of Game and Fish that this is a federal issue and DGF should not be playing such a role in the federal (wolf) repopulation efforts."
        May said that in trying to determine the cause of a domesticated animal's death, Wildlife Services personnel "routinely solicit input from others," including Game and Fish employees, "in order to ensure that the most informed decision is made."
        A private conservation group, Defenders of Wildlife, stopped paying ranchers compensation for wolf depredations last year; the group paid $19,203 to eight individuals in 2009 for wolf depredation claims.

Monday, April 11, 2011

NM ranchers: Venture threatens to leave area dry

Ray Pittman pulled his 1994 F-150 pickup to the top of a thinly wooded hill, a short walk from the water tank he built back in 1999 on his 1,300-acre ranch.

A mile down the hill, Pittman's 540-foot-deep well pumps groundwater, pushing it up to the tank to provide for cattle on this remote patch of central New Mexico landscape.

To the west, on the vast plain that makes up the Augustin Plains Ranch, a commercial venture has proposed sinking 37 wells to pump groundwater and pipe it to the Rio Grande Valley to supplement dwindling water supplies of central New Mexico's farms and cities.

The Augustin Plains Ranch proposal would move 54,000 acre-feet per year of water to the Rio Grande Basin 50 miles away — enough water to meet the needs of a city the size of Albuquerque.

In their application to the state, project backers were not specific about how the water would be used. The group declined repeated requests to provide further information.

But it appears to be aimed at making up for a water shortfall in the rapidly growing Rio Grande Valley, either through direct use or replacing water removed from the Rio Grande by municipal or industrial users upstream.

Those in the central New Mexico ranch country where the water would start its journey fear the project would leave them high and dry.

Pittman and his wife, Carol, use a second well to provide water to two ranch houses, three horses, two donkeys, "six or seven cats," one dog and nine goldfish that call one of the stock tanks home.

"People are afraid that this will deplete the aquifer," said Carol Pittman. "We all have wells."

The proposal would "essentially dry up the whole damn basin," said Albuquerque hydrologist Frank Titus. Water would disappear from wells, said Titus, who investigated the issue on behalf of the Pittmans and other residents of the ranching community. He said he has received no financial compensation for his work.

The Augustin Plains Ranch proposal and a similar project in eastern New Mexico, which would send water from the Fort Sumner area to Santa Fe, reflect entrepreneurial attempts to deal with a glaring New Mexico water problem.

The most detailed analysis, done for the New Mexico Interstate Stream Commission in 2004, found residents of New Mexico's Middle Rio Grande Valley are using water at an unsustainable rate, consuming water faster than nature replenishes it.

Albuquerque and Santa Fe have in the past few years started using water imported from the Colorado River Basin via the San Juan-Chama Project, reducing their dependence on unsustainable groundwater pumping.

Cities also have been pushed to make up some of the shortfall by buying up agricultural water rights in the Rio Grande Valley and taking the land out of production to reduce irrigation use.

To meet all municipal water needs would require taking nearly all the valley's agricultural land out of farming and shifting the water to city use, according to an analysis by the state Interstate Stream Commission.

The search for alternatives has led to the proposals to pump water from rural New Mexico into the Rio Grande Valley.

"There's no question in my mind that at some point there may be a need to augment the Middle Rio Grande by bringing in some bulk water from somewhere," State Engineer John D'Antonio said.

The proposals raise the specter of the Owens Valley, the California area dried up early in the 20th century to bring water to Los Angeles. Taking that water devastated the Owens Valley, D'Antonio said.

For now, D'Antonio, whose office administers New Mexico water rights, has said no. In a ruling earlier this year, D'Antonio turned down the Fort Sumner proposal. The group proposing the pipeline has appealed.

Attorneys involved in the case say the law cited in D'Antonio's decision is likely to apply to the Augustin Plains Ranch proposal. But the legal argument behind the decision is narrow, leaving open the possibility the proposal could return.

There are significant differences between the proposals.

The Fort Sumner proposal at 6,425 acre-feet of water per year involves about one-eighth the amount proposed to be pumped from the basin adjacent to the Pittmans' ranch.

The Fort Sumner proposal also involves existing groundwater pumping rights being used to irrigate farm land, said Ron Green, the Roswell rancher behind the project. The Augustin Plains Ranch wants to create new water rights with its 37 wells.

But the chief complaint against both projects is similar — that pumping water from rural areas to meet demand in New Mexico's cities will reduce the water available to communities left behind.

Green says the Fort Sumner project was designed to protect the water rights and economy of the Pecos River Valley, where the water will originate. The project has been structured to take only groundwater from farms in a way that won't affect the rights of other water users, Green said.

Steve Hernandez, the attorney who represents Pecos Valley irrigators who oppose the project, says the project poses the risk of upsetting the delicate water rights balance in the valley.

The project has a fatal flaw, according to D'Antonio's decision: Green has not identified who, specifically, will be using the water.

State water law requires an identified "beneficial use" on the receiving end, D'Antonio ruled. Without knowing who will use the water, where and how, the state cannot approve the application, D'Antonio ruled.

The argument used in the Fort Sumner ruling appears to apply to the Augustin Plains Ranch proposal, said Bruce Frederick of the New Mexico Environmental Law Center, who represents the Pittmans and other opponents.

The Augustin Plains Ranch proposal submitted in 2008 simply says the water can be used for any purpose anywhere in the portions of Catron, Sierra, Socorro, Valencia, Bernalillo, Sandoval and Santa Fe counties that lie in the Rio Grande Basin.

That falls short of the requirement to specify a "beneficial use," said Frederick.

The proposal amounts to an "attempt to monopolize a water supply for purposes of speculation and possible future water sales," Frederick wrote in a brief filed in the case.

There has been no decision in the case. But observers note both projects could overcome the current legal hurdle by signing up and identifying users, starting the legal discussions anew.

Friday, April 8, 2011

To Graze or Not To Graze?

Drought, Forest Service threaten to delay grazing season

The Rio Arriba County Commission voted to declare a state of emergency on behalf of local ranchers after the federal Forest Service threatened to delay the start of cattle grazing season on public lands.

Several stockmen spoke to the Commission at a meeting March 31 and said due to persistent, drought-like conditions in the region, district rangers in the Santa Fe and Carson National Forests were going to push back the date ranchers are permitted to release their cattle onto public grazing lands.

Dennis Gallegos, whose cattle graze on the Polvadera allotment in the Santa Fe National Forest, stood before the Commission the day before his permitted release date and said he was willing to force a confrontation with the Service, though he had been told not to release his cows yet. Then he called upon the commissioners to support him.

“I’m willing to turn the cattle out tomorrow if the County’s willing to challenge (the Service’s) authority,” Gallegos said. “I’m willing to start the brawl.“

Carlos Salazar, president of the Northern New Mexico Stockman’s Association, also spoke at the meeting and said he hoped the Commission and the sheriff would support Gallegos if he defied the Service.

Commission Chairman Felipe Martinez said as a public official the Commission could not encourage civil unrest. Then he added, “If I was in your position, maybe I’d do it too.”

Commissioner Alfredo Montoya agreed with Martinez that the Commission could not encourage defiance of the Service but to appease the ranchers he proposed passing the resolution declaring a state of emergency.

The resolution was drafted on the spot by Salazar, County attorney Ted Trujillo and County Emergency Manager Mateo DeVargas, then passed by the Commission. It declares “a state of emergency for the grazing community“ and calls upon available local resources and emergency measures, though it does not call for any explicit action or set aside any money.

Montoya said the declaration will call attention to the matter and could qualify the County for state resources.

Gallegos, who has one of the earliest permitted entry dates in the Santa Fe National Forest, said he received a verbal warning from Forest Service Range Conservationist Donald Serrano informing him that due to a lack of rainfall, his entry to the Polvadera allotment would be delayed indefinitely.

On April 1, the day Gallegos was supposed to turn his cattle out to graze, he instead met with Española District Ranger Sandy Hurlocker, Serrano and three members of the Range Improvement Task Force from New Mexico State University for a joint evaluation of the grazing land.

Sam Smallidge, of the task force, agreed with Serrano’s assessment that conditions on the range were dry, but said there was enough residual forage from last year to sustain Gallegos’ 30 cattle for at least a month until the date of release for other ranchers’ cattle on the allotment, whereupon a reassessment of the conditions should be conducted.

Smallidge also said a wet summer can be expected following a dry La Niña winter.

But Serrano said if conditions remain dry the entire allotment may have to be abandoned for the season and he was concerned that it would be more difficult to persuade Gallegos to remove his cattle than prevent him from allowing them onto the lands in the first place. Serrano said if the pastures received enough rainfall in the coming weeks to spur the growth of forage grasses for the cows, everything could proceed as normal.

“Why would I leave my cattle in a place with no food and water?” Gallegos said. “I’d rather sell them for $600 each than clip tags off their ears and let them die.”

Serrano fretted that if water remained scarce the ranchers would herd the cows into a higher-altitude pasture, potentially affecting an area the Service is rehabilitating from a forest fire last year and damaging a trout stream.

“We’re under a lot of pressure to take care of the burn area,” Serrano said.

After the joint assessment, Hurlocker, who as district ranger has the final say on the grazing decision, said he would allow Gallegos to turn out his cattle Monday, if he agreed to undertake certain measures, such as hauling water by truck for his cows or removing his cattle, should the dry weather persist

Hurlocker said he would incorporate the added measures into Gallegos’ annual operating instructions — a set of regulations given to each rancher at the start of each season. Hurlocker said situations like this are difficult because he is charged with managing the land for many uses not just cattle.

Gallegos’ reprieve may be temporary. Serrano said ranchers should be prepared with emergency drought plans and may have to sell their cows, send them to slaughter or support them on hay on their own property through all or part of the summer.

Ranchers on the Jarita Mesa and Alamosa allotments in the Carson National Forest — who are already bracing for a season marked by a 20 percent reduction in their permitted cattle — were also given warning in January that if the dry weather continued they would be subject to later entry dates, said Jarita Mesa Rancher Sebedeo Chacon. As of March 31, with many of the ranchers’ entry dates a month or two away, he said the Forest Service had not given him a written notice of any postponement, something he said it is required to do.

The emergency declaration cites delayed entry of livestock in several allotments in the Jemez, San Juan and Sangre de Cristo Mountains.

Monday, April 4, 2011

Don't let Big Green use government to mug taxpayers

So you are walking along one bright, sunny day minding your own business and loving life when suddenly two strangers jump in front of you, one a bearded dude in a worn L.L. Bean canvas shirt, khaki cargo shorts and sandals, the other in a dark pin-striped suit waving a file labeled "Equal Access to Justice Act."

When they demand that you "hand it over," your first instinct is probably to grip your wallet while assuming a defensive stance. You are indeed about to be mugged, but don't bother fighting these characters. Resistance is useless because such muggers have the law on their side. EAJA payouts for lawyer fees and other settlement costs in environmental suits against the government are going to leave you much poorer.

But the day could be coming when you won't be entirely without recourse, thanks to Sen. David Vitter, R-La., and Rep. Rob Bishop, R-Utah. They have introduced the Domestic Jobs, Domestic Energy, and Deficit Reduction Act of 2011 (3-D). The sponsors claim their bill "would create more than 2 million jobs, $10 trillion in economic activity, and $2 trillion in federal tax receipts (conservative 30-year estimates)." Among 3-D's major features are provisions to prod the federal bureaucracy to speed up Outer Continental Shelf lease sales for oil and natural gas exploration and development off the U.S. coasts, as well as federal permitting for energy purposes on public lands. The measure also would fix time limits on environmental and judicial reviews of leases and permits.

So what has all that to do with the two menacing figures blocking your way? The 3-D proposal would cap EAJA payouts in environmental lawsuits against the government. Under EAJA, Big Green environmental groups like the Environmental Defense Fund and Center for Biodiversity file hundreds of suits against the government every year, knowing the odds are great the litigation will be settled out of court. Win or lose, the Big Green groups receive millions of dollars in settlements, including lawyers fees and other cost reimbursements. The settlements are paid by the Treasury Department's Judgment Fund. Vitter and Bishop estimate that at least $4.7 billion has been paid out since 2003, with much of it going to Big Green groups.

But here's the catch: According to the Treasury Department, "the Judgment Fund has no fiscal year limitations, and there is no need for Congress to appropriate funds to it annually or otherwise. Moreover, disbursements from it are not attributed to or accounted for by the agencies whose activities give rise to awards paid. Absent a specific statutory requirement, the agency responsible is not required to reimburse the Judgment Fund." In other words, EAJA invites Big Green attorneys to file suits regardless of merit, knowing their hefty fees will be covered in the settlement paid from the Judgment Fund.

Worst of all, taxpayers have virtually no way of knowing how much such suits cost because courts often seal the settlements. Plus, according to Vitter and Bishop, "since 1998 there has been no uniform method of reviewing EAJA and there is no public accountability or transparency in the program." Tomorrow's Examiner editorial will look at the victims of this legalized theft and the lengthy list of Big Green perpetrators assaulting them.

Secrecy hides taxpayer dollars used in Big Green lawsuits

For thousands of farming and ranching families with leases and grazing rights on public lands in the West, having a good lawyer on call is more than a routine cost of doing business. It's an absolute necessity to protect a way of life that has often been handed down for generations. But that's far from the worst of it because not only do these hard-working, taxpaying men and women have to pay their own attorneys, they also frequently end up having to help pay the attorneys' fees and other legal costs for Big Green environmental groups that file lawsuits seeking to force the federal government to do their bidding. Usually, the individual ranchers and farmers aren't even defendants, they're just innocent bystanders who need attorneys to protect their interests because their livelihoods depend on the outcome of such litigation.

This unjust situation is a result of the Big Green environmental movement's discovery several decades ago that there was indeed "gold in them thar hills," thanks to an obscure federal law known as the Equal Access to Justice Act. Sunday's Examiner editorial detailed how a law intended to help small businesses get their day in court has been perverted into an unaccountable, tax-paid, cash cow worth hundreds of millions of dollars to groups like the Sierra Club, Center for Biodiversity, Environmental Defense Fund and Natural Resources Defense Council.

Payments under EAJA are made by the U.S. Treasury to its Judgment Fund, which is funded by a permanent congressional appropriation. The fund is not audited, agencies aren't required to account in their budgets for payments mandated by court decisions in their areas of jurisdiction, and courts often seal settlements to prevent public examination. It's an open invitation for Big Green groups to file suits, knowing that win or lose, most if not all of their legal expenses will be paid by the government. Best of all for them, it's all but impossible to track who gets how much from the taxpayers from these suits.

But there is enough evidence available to remove any doubt that Big Green litigators have hit the jackpot. Wyoming attorney Karen Fallen has spent many hours poring over court records to compile what she concedes is an incomplete list that includes 647 cases, including 299 in which nearly $18 million was paid under the EAJA to lawyers for 10 Big Green groups. If that amount seems insignificant, Sen. David Vitter, R-La., and Rep. Rob Bishop, R-Utah, estimate that at least $4.7 billion has been paid out of the Judgment Fund under the EAJA since 2003, with much of it going to Big Green groups. Vitter and Bishop have introduced legislation to cap such payments and to mandate proper accounting of them. Such actions would be good first steps toward restoring balance to federal litigation costs and ensuring justice for Western farmers and ranchers.