Wednesday, August 31, 2011

Elko County wants end to 15-year-old trout case

RENO, Nev. — Never one to back down from a fight with the U.S. government, northern Nevada's rural Elko County has been feuding with federal land managers for decades over environmental protections they say go too far.

So it comes as a bit of a surprise to lawyers for the government and the environmental groups they've been battling for 15 years that the county's district attorney thinks it's time to end a legal skirmish over protecting a threatened fish and controlling a national forest road.

"There is nothing left to fight about," Deputy District Attorney Kristin McQueary said about the dispute that pitted a citizen work crew called the Shovel Brigade against the Endangered Species Act.

Mother Nature started the whole thing in 1995 when the Jarbidge River flooded its banks and washed out the final 1.5-mile stretch of the remote road that winds up a steep narrow canyon. The road dead-ends at a wilderness area where motorized vehicles are prohibited in the rugged mountains near the Nevada-Idaho line, about 70 miles west of Utah.

The Forest Service initially made plans to repair most of the road, but backed off when Trout Unlimited objected based on concerns about the impact erosion from the road work would have on bull trout.

The agency abandoned the idea altogether when then-Interior Secretary Bruce Babbitt declared the fish threatened in 1998 in Oregon, Washington, Idaho, Montana and Nevada. That's when the Elko County commissioners decided to take matters into their own hands and make their own repairs to the road they claimed belonged to the county in the first place, not the feds.

The Justice Department filed suit against the county and Shovel Brigade leaders in 1999, winning an injunction forbidding any unapproved repair work, and the battle for the South Canyon Road was on in what was proudly proclaimed the republic of Elko.

"It never should have been closed in the first place," Grant Gerber, an Elko lawyer and founding member of the Shovel Brigade, said in an interview last week. "That's why the citizens went up there and opened it up."

At its height, the controversy that is as much about principal as a gravel road became a symbol of conflict between private property rights and wildlife protections in the Endangered Species Act and other federal laws under assault in Congress at the time by a number of Western Republicans.

State Assemblyman John Carpenter, another Shovel Brigade leader, likened the uprising to the Boston Tea Party. Supporters shipped 10,000 shovels to the town in a symbolic gesture and a giant shovel was erected in front of the courthouse for the county bigger than the state of Maryland.

A parade down main street took aim at Forest supervisor Gloria Flora, who later resigned citing an "anti-federal fervor" in the state where she said "fed-bashing" had become a sport.

But things have changed in the ensuing decade, according to McQueary, who has filed a formal motion arguing the lingering case in U.S. District Court in Reno should be dismissed because it is moot. She said the relationship between the county and the Forest Service has been downright "cordial" since the agency agreed to reopen all but the last half mile of the road into the Jarbidge Wilderness.

"It is 16 years after the flood that caused the (road's) damage, almost 13 years after the Shovel Brigade made repairs, almost 12 years after this lawsuit was filed, 10 years after the parties settled, more than six years after the road was fixed," McQueary wrote in court papers.

"There is no dispute between the Forest Service and Elko County," she said. "There is no longer a cause of controversy."

Not so fast, says The Wilderness Society and the Utah-based Great Old Broads for Wilderness. They argue the settlement agreement that reopened most of the road is illegal and have won a pair of favorable rulings from the 9th Circuit U.S. Court of Appeals that have kept it from being formally implemented.

Michael Freeman, a Denver-based lawyer for the Earthjustice Legal Defense Fund who has represented the two conservation groups from the beginning, said the federal appellate court in San Francisco has made it clear - most recently in 2006 - the Forest Service had no authority to cut the side deal without regard to the impact on the fish.

Keeping the last half mile closed is a "definite improvement," he said. "But the rest of the road is still open. We think it should be closed."

Freeman said the latest move is the county's attempt to declare victory, continue its defiance of federal jurisdiction and run roughshod over U.S. environmental protections.

"The broader question here is whether the Forest Service is going to manage public lands that belong to the entire American people for the public, or be allowed to give away that authority away to a small group of people who have flouted the federal government and defied its authority," he said.

Justice Department lawyers acknowledge that the Forest Service and the county "have developed improved relations, in part through cooperation on a number of watershed improvement projects."

"In short, the county is correct that there is no longer a dispute between the county and the United States. However, that does not mean the case is moot," according to court papers by David Gehlert, a lawyer in the Environmental & Natural Resources Division. He said that's because the status of the proposed settlement "remains unresolved."

McQueary said the only reason the agreement is unresolved is because the two environmental groups "don't like it."

"The interveners got what they wanted, but it wasn't enough," she said.

"No matter the semantics, the federal government and Elko County have agreed to not waste any more time fighting about the road, opting instead to expand taxpayers' resources on more productive projects."

Surviving leaders of the famed Shovel Brigade are among those backing the motion to dismiss.

"The Forest Service and county shook hands and agreed the road would stay open," Gerber said.

The county's claim to the road is based in part on a Civil War-era law, R.S. 2477, that allows for use of historic highways across federal lands in the West if the lands are not in federal use.

Under the settlement agreement, the Forest Service declined to formally recognize the South Canyon Road as an RS-2477 road, but agreed not to challenge the county's claim that it is.

Twice over the past eight years, federal judges in Reno have given their stamp of approval to the deal only to be told each time by the U.S. appellate court in San Francisco that the deal didn't pass legal muster.

While the government formally opposes the motion, Forest Service spokeswoman Christie Kalkowski said the agency remains "fully committed to our relationship with Elko County."

"While differing opinions will occur during our ongoing conversations about resource management, we remain engaged and ready to work towards sustainable solutions," she said.

The Justice Department recently entered three dozen new documents into the record, including rules governing forest reserves dating to 1897, mining claims in the Jarbidge area in 1912 and Humboldt National Forest sheep and cattle boundaries in 1917.

Last week, U.S. Magistrate Judge Robert McQuaid granted a request to extend deadlines for the latest round of response briefs into November before he decides whether to hold another evidentiary hearing.

Carpenter, another of the original Shovel Brigade leaders, never dreamed the legal battle would continue this long.

"Them enviros, they can't stand to lose," said the 80-year-old rancher and realtor who retired from the legislature this year. "The people have won, that's the main thing."

"The road is open and it is going to stay open. They're not going to get it closed no matter what because we'll just keep opening it."

Thursday, August 18, 2011

The monumental fight over Otero Mesa

The decade-long tussle over energy development in New Mexico's Otero Mesa has been reinvigorated recently, as hardrock mining claims now threaten the region for the first time.

The area, sometimes referred to as the "Southwest's Serengeti," is a 1.2 million-acre stretch of undisturbed Chihuahuan Desert grassland. The sprawling but sensitive expanses of black grama are home to over 1,000 species of native wildlife including a genetically-pure herd of pronghorn antelope, the endangered northern aplomado falcon, mountain lions, mule deer, bald and golden eagles and hundreds of species of plants, insects and migratory birds.

Otero Mesa is administered by the Bureau of Land Management (BLM) which is mandated to facilitate exploration, development and production of energy on appropriate public lands. During the second Bush's administration there was a push to advance oil and gas extraction on the Otero Mesa.

But whether or not the area's fragile ecology can withstand such activity became central to the ongoing row. Drilling opponents—which then included the State of New Mexico—fought industry all the way to the U.S. 10th Circuit Court of Appeals which, in 2009, found that the BLM's Resource Management Plan Amendment fell short in assessing the potential impacts of oil and gas development, including possible habitat fragmentation and contamination of the Salt Basin Aquifer which underlies the mesa.

The BLM is now working on a new management plan, which is expected to be released early next year.
 New to the debate is the discovery that Otero Mesa may harbor a cache of valuable minerals. A 2010 U.S. Geological Survey study revealed that the Cornudas Range, including 7,280-foot Wind Mountain, may hold 200 tons of minerals, including highly sought-after rare earth metals. Seeing dollar signs, Colorado-based Geovic Mining Corp. staked 161 mineral claims (five square miles worth) this spring, nearby some of the most visited parts of Otero.

The General Mining Act of 1872 allows companies to develop staked claims but the BLM is required to do environmental reviews of all proposed actions. Conservationists say exploration and mining of the area could lead to destruction on the scale of the mountaintop removal seen in Appalachia. The company says digging for rare earths would mean only minor disturbances.

Regardless, the claims have led to a renewed push to declare Otero Mesa a national monument. While President Obama has yet to invoke his authority to establish monuments under the Antiquities Act of 1906, a BLM memo leaked last year put Otero on a hot list of locations that qualify for nomination.

Although Obama has said that only places with local support for a monument in their backyard will make the cut, the designation is at the president's discretion; it requires no Congressional consideration or approval. Fifteen out of the past eighteen presidents have designated national monuments, some amid a firestorm of criticism.

An elevation to national monument would permanently protect the Otero Mesa from new mining and drilling claims. Existing claims, including Geovic Mining Corp.'s, would remain valid but would be scrutinized for their economic fruitfulness.

Adding their voices to those of environmentalists and outdoor enthusiasts in the drive for monument status are members of the Mescalero Apache, a tribe that took refuge in the mountains of southern New Mexico in the 18th century and still assert ancestral ties to the mesa. In a letter to their tribal president, the group Mescalero Apache Advocates expressed their spiritual connection to Wind Mountain and to the archaeological artifacts that are among the area's attractions. "And on those massive stones that fell from the mountain top, our people expressed through rock paintings their challenges, their visions, and their stories, like their ancient ancestors who dwelled there before them," they said.

Last month, the Mescaleros met with Department of the Interior and New Mexican officials, expressing concern for the natural resources which they believe drilling and mining endanger, including the huge untapped aquifer underlying Otero, which may be the largest remaining in the state. They worry that the fractured geology that characterizes the area makes that reserve vulnerable to contamination.

Despite the desire of many local and national groups to award the mesa a higher level of protection, a monument designation will not come easily. Western lawmakers are particularly touchy about the subject, arguing that states and Congress should have more say in what happens to public land. This type of dissention goes as far back as western members of Congress opposing Theodore Roosevelt's establishment of large new reserves on federal lands.

Last May, the Otero County Commission passed an ordinance opposing national monument protection for Otero Mesa, likely at the behest of local ranchers who fear the status change will threaten their cheap grazing on public lands. While Susana Martinez, the state's new governor, hasn't voiced her stance, her coziness with oil and gas industries makes her an unlikely ally for conservation.

Rep. Steve Pearce (R-N.M.) has been an outspoken critic, and has actively campaigned not only to prevent protection of Otero Mesa but to change the way national monuments are designated nationwide. He is a co-sponsor of H.R. 302, legislation that would require the president—in direct opposition to the Antiquities Act—to secure state consent before declaring a national monument. "When conserving our natural resources, it is important to have a balanced approach that includes local priorities, such as jobs, the economy, private property and support," a Pearce spokesman told the Environment & Energy Daily.

The tired argument that conservation will mean economic paralysis wherever the magic wand of protection lands is a disingenuous one in the case of Otero Mesa. If elected officials in New Mexico are truly interested in acting in the best interests, now and in the future, of their constituents, they need to run the numbers.

An analysis of the potential impacts, on the southern New Mexican economy, of naming Otero Mesa National Monument was done recently by Headwaters Economics, an independent, non-profit research group.

"The short answer is that repeated academic studies have shown that investments in public lands conservation and restoration provide an immediate return through new employment and revenue," says author Ben Alexander. The study cites the Economic Research Service of the U.S. Department of Agriculture, which recently found that "recreation and tourism development contributes to rural well-being, increasing local employment, wage levels, and income, reducing poverty, and improving education and health.”

Unlike the small-scale, short-term benefits of resource extraction that would be expected for Otero Mesa residents, protected public lands also help to promote long-term economic growth, says the Headwaters study, "because of their ability to attract and retain people, entrepreneurs, and the growing number of retirees who locate for quality of life reasons." Published research also shows that natural amenities help sustain property values and attract new investment.

While a national monument designation "would not harm agricultural uses or military employment" in the area, says the study, passing up an opportunity to diversify the economy of southern New Mexico and to boost its long-term resiliency by protecting its unique desert grasslands could be a bad move. "Looking at mineral wealth, the [BLM's] analysis showed little reason to believe that the local economy would benefit from projected fossil fuel extraction on Otero Mesa--and that the limited revenue from mineral extraction might not even cover the share of infrastructure and service costs," says Alexander.

It's difficult to hear amid the anti-environmental mewling that's overtaken Congress nowadays, but here it is loud and clear: conservation pays. If they are honestly focused on "local priorities, such as jobs, the economy, private property and support," as Rep. Pearce's camp purports to be, they would have to support national monument status for Otero Mesa. Anything less is playing politics with our public lands.

Essays in the Range blog are not written by High Country News. The authors are solely responsible for the content.

Heather Hansen is an environmental journalist working with the Red Lodge Clearinghouse /Natural Resources Law Center at CU Boulder, to help raise awareness of natural resource issues.

Thursday, August 11, 2011

National forests: Recreational payoff and grazing benefits

 by John Maday

Recreation and tourism bring dollars to communities near national forests, but ranching and public-lands grazing play a key role too.

A new report from the USDA’s National Forest Service shows that recreational activities on national forests and grasslands make large economic impacts on America's rural communities, contributing $14.5 billion annually to the U.S. economy. This week’s “National Visitor Use Monitoring report” indicates national forests attracted 170.8 million recreational visitors and sustained approximately 223,000 jobs in rural communities this past year.

"This data shows once again just what a boon our forests are to local economies," says Forest Service Chief Tom Tidwell. "Because of forest activities, thousands of jobs are supported in hundreds of rural communities. We are proud of helping to put a paycheck into the pockets of so many hardworking Americans."

The report focuses on recreational use of these public lands, noting a high visitor-satisfaction rate and the money recreational visitors spend in communities near national forests and grasslands. These impacts surely are important, with tourism and recreation representing significant contributions to local economies, particularly in Western states featuring expansive public lands. This report, however, does not document the economic, environmental and social contributions of public-lands grazing.

Many ranchers in Western states rely on grazing allotments on Forest Service lands and other public lands for summer range. These arrangements allow them to maintain much larger herds than they could on deeded land alone. These ranches employ workers, pay taxes and spend considerable funds locally on equipment, supplies and services.

Another set of benefits often overlooked by the general public is that these ranches provide critical “buffers” around forest and grassland areas. Ranches adjacent to public lands protect the scenic, open vistas treasured by recreational visitors. They also provide critical wildlife habitat. Many of the ranches that graze cattle on public lands are located in the lower valleys surrounding the more mountainous national forests. While the ranchers winter their cows on their private land, deer, elk and other wildlife migrate to the same areas, benefitting from improved water sources and forage supplies.

Access to seasonal grazing on public lands helps keep these ranches viable, as without it, many could not maintain enough animals year-around to sustain the ranch. When ranches are not economically sustainable, we’ve seen what happens – ranchers sell and developers move in. A ranch becomes a collection of 20-acre “ranchettes,” complete with buildings, fences, pavement and a few horses or cows continuously grazing each property down to the bare dirt. Wildlife habitat and migration corridors are gone, along with much of the scenery tourists and recreationists pay for.

Over time, loss of grazing rights on public lands could lead to national forests becoming islands surrounded by development, and that visitor satisfaction rate, which USDA lists as 94 percent satisfied, would decline.

So, next time you hear someone complain about public-lands grazing, explain to them that ranchers are some of the best friends our national forests and grasslands have.

Monday, August 1, 2011

Pressure resumes for trapping ban in wolf area

Now that state game officials have cleared the way for trapping to resume in southwestern New Mexico, environmentalists are renewing their calling for the federal government to do more to protect the Mexican gray wolf in the Southwest.

The U.S. Forest Service and the Fish and Wildlife Service received letters this week from the group WildEarth Guardians and its supporters. They asked that officials reconsider a 2010 petition seeking to end trapping throughout the wolf's range in southwestern New Mexico and southeastern Arizona.

Supporters contend trapping presents a threat to wolf recovery and that the agencies have a legal obligation under the Endangered Species Act to maintain fit wolves that can hunt for native prey.

"As a direct result of trapping activities in the recovery area, two wolves have had entire limbs amputated. Some wolves lost digits and others sustained different injuries," the group said in its letters.

Michael Robinson of the Center for Biological Diversity, another pro-wolf group, said any additional injuries or deaths are "of grave concern just given the numbers and the genetic plight of the Mexican wolf."

The federal government has been trying to reintroduce wolves to the region since 1998. Biologists had hoped to have more than 100 wolves in the wild within a decade, but that number is closer to 50.

Regulated furbearer trapping on the Gila and Apache national forests was banned last summer by former Democratic Gov. Bill Richardson, a supporter of the wolf reintroduction effort.

The state Game Commission extended the ban last fall, giving researchers more time to study the risks of trapping and snaring to wolves. While the results of the study have yet to be made public, the commission voted last week to lift the ban.

Environmentalists want the Fish and Wildlife Service to amend the wolf reintroduction rule to ban the use of all traps and snares in the wolf's range. They want the Forest Service to impose emergency trapping closures on the Gila and Apache forests and amend any planning documents to ban trapping in the future.

Regional Fish and Wildlife spokesman Tom Buckley said Friday the agency isn't going to be doing anything differently in the area now that New Mexico has lifted its trapping ban.

"There's always a concern when there are additional threats in an area and this of course will entail an additional threat to the wolves, but they've had that before," Buckley said, noting that the ban had been in place for only a year.

According to the Fish and Wildlife Service, there have been 14 incidents involving wolves caught in traps since 2002. In six cases, the animals were injured.

"It's something we'll keep an eye on," Buckley said. "We would encourage anybody who does any trapping out there to check their traps regularly so that any wildlife, including wolves, if they get caught they don't have to sit in the trap and suffer."

The Mexican gray wolf was added to the federal endangered species list in 1976 after it was all but wiped out due to hunting and government-sponsored extermination campaigns.

The reintroduction effort along the New Mexico-Arizona border has been hampered by illegal shootings, court battles, concerns from environmentalists and complaints from ranchers. Another blow came last month when the New Mexico Game and Fish Department voted to pull out of the project.

Buckley said the Fish and Wildlife Service is still trying to make progress on revamping the wolf's recovery plan and the agency is getting its new interdiction program up and running so ranchers who lose livestock to the wolves have another place to seek financial help.

In fact, the interdiction program had its first claim from a New Mexico rancher in June. The claim, which is being processed, sought $1,500 for a pair of calves that were confirmed to have been killed by wolves.

Buckley said wildlife managers are also hopeful after seeing pups with some of the packs during surveys in the wake of the Wallow fire, which burned hundreds of thousands of acres in Arizona and New Mexico.

"If they survive until the end of the year, they will be part of our count," he said. "But between now and then, we're just keeping our fingers crossed."