Wednesday, August 29, 2012

State has spent more than $200K defending wolf lawsuit

 State wildlife managers spent more than $216,000 on outside attorneys in less than half a year to defend against a claim that they violated the federal Endangered Species Act relating to Mexican gray wolves.

This confrontation began when the New Mexico Game and Fish Department last year lifted a ban on trapping in southwestern New Mexico, where the federal government reintroduced the endangered wolves. It meant state lands again were open to potential adversaries of the rare wolves.

WildEarth Guardians sued the Game and Fish Department, alleging a state agency had created a system that could harm or kill wolves guaranteed protection by federal law.

The suit, filed in February in U.S. District Court in Albuquerque, named state Game and Fish Director James Lane and Game Commission Chairman Jim McClintic as defendants.

"No permit is necessary to trap skunks or coyotes. Wolves that should enjoy protection are in danger of being harmed or killed," said Wendy Keefover of WildEarth Guardians.

Every death of a Mexican gray wolf is statistically significant, she said, because its population in the wilds of New Mexico and Arizona numbers no more than 42.

Lane, through a spokesman, said money the state is using to defend against the lawsuit came from fishing, hunting and trapping licenses. He declined to say anything else.

State records show that most of the money spent so far by the Game and Fish Department has gone to the law firm of Kelley Drye in Washington, D.C. It had received $199,801 through June, the end of the state government's budget year.

Another $16,238 for the wolf case went to the Albuquerque law firm of Keleher & McLeod.

The suit is still being litigated, and seven agencies opposed to wolf reintroduction have intervened as defendants.

They include the New Mexico Council of Outfitters and Guides, the New Mexico Farm & Livestock Bureau and the New Mexico Cattle Growers' Association.

Caren Cowan, executive director of the cattle growers, said her group opposes the wolf as an unwanted and dangerous predator. She said she also resented WildEarth Guardians trying to create policies for the state.

"We need the ability to use our own lands," Cowan said in an interview.

Keefover of WildEarth Guardians said federal protection for the wolf trumps the state trapping program. Her group maintains the wolf's future is being threatened because of political maneuverings in New Mexico.

When Democrat Bill Richardson was governor, he issued an executive order prohibiting leg-hold and body-crushing traps within the Mexican gray wolf's New Mexico recovery area. He said he wanted to protect the wolves as much as possible until their population grew. Richardson's order came in July 2010, six months before he left office.

Republican Susana Martinez succeeded Richardson. The Game and Fish Department, as part of her administration, rescinded Richardson's trapping ban in July 2011.

It meant that trapping could occur year-round on lands where it had been prohibited. They included portions of the Wild Rivers Recreation Area of the Rio Grande, the Valle Vidal, Vermejo Ranch and the Valles Caldera National Preserve.

WildEarth Guardians is no happier with President Obama's administration than it is with Martinez's.

In 2010 the conservation group filed petitions with the U.S. Forest Service and the U.S. Fish and Wildlife Service in hopes of receiving an emergency exclusion of trapping in the Mexican gray wolf's range.

The Forest Service rejected the request and the Fish and Wildlife Service ignored it, Keefover said.

The wolf's territory also extends into Arizona, where it is safer.

Trapping is outlawed on Arizona's public lands. Voters, not politicians, made that decision in a public vote in 1994.

Cowan of the cattle growers association said the lawsuit amounted to little. Even the U.S. government describes Mexican gray wolves in the wild as a "nonessential experimental population," she said.

Cowan also said the chances of wolves dying or being hurt in traps were small and had occurred infrequently since their reintroduction in New Mexico and Arizona in 1998.

A study by the U.S. Geological Survey and the U.S. Department of the Interior found that 14 Mexican gray wolves were captured in foothold traps set by people other than Fish and Wildlife employees. Thirteen of the trappings occurred in New Mexico.

Two of the wolves died and two others were hurt severely enough that leg amputations were necessary.

The same study found that 37 wolves were illegally shot, 12 were hit by vehicles, 11 were "lethally removed" by the U.S. Fish and Wildlife Service, one was shot legally by a member of the public, and one died from a trap injury that was part of government research operations. Given the Mexican gray wolf's minuscule population outside captivity, Keefover said, the species could vanish, especially with programs such as state trapping that allows for year-round, unlicensed operations.

New Mexico residents pay $20 for a license to trap furbearers. But, as Keefover pointed out, no license for state residents is needed to trap coyotes or skunks.

Nonresident trappers can buy a license for $345. They must be licenses for coyote and skunk trapping.

Milan Simonich can be reached at or 505-820-6898. His blog is at


Wednesday, August 22, 2012

Rancher, wolf battle escalates

When Laura Schneberger sent out an email over the weekend about her suspicions in regards to a wolf trap being tampered with, her frustration was clear.

Schneberger is president of the Gila Livestock Growers Association and said the association, now at 95 members, once was 150 or so members strong.

She blames this, in part, on wolves.

Or rather on the wolf program as managed by the Fish and Wildlife Service.

“Its like dealing with the dang mafia,” Schneberger said in reference to Fish and Wildlife. She said GLGA does not believe the department is doing enough to protect the ranchers.

Representing Fish and Wildlife, Tom Buckley said his department is doing what it can.

He said there have been four confirmed wolf depredations since March.

A single wolf, the alpha female of the Fox Mountain pack in Western Catron County, had been singled out by the service to be killed earlier this month, but because of public concern, Fish and Wildlife rescinded the kill order two days later, Aug. 10, and agreed to trap her instead.

“Our business is to recover the Mexican wolf,” Buckley said. “We don’t have any answers yet.”

A Mexican Wolf Interdiction Fund has been set up to provide compensation for confirmed wolf kills of cattle, Buckley said. The fund pays for the depredations, range riders and hay for cattle that can’t graze on their normal ranges.

The range riders generally stick around where the cattle are and put themselves between the wolves and the cows, he said.

“That’s usually enough to deter the wolves,” he said. “Most cattle don’t get bothered by the wolves at all.”

The environmental group Defenders of Wildlife generally covers the cost of the range riders, Buckley said.

He said statistics are very low when looking at wolf kills as compared to cattle killed in other predator attacks.

“Many more are killed by wild dogs and coyotes than wolves,” he said. “It’s just such a sensitive subject to some people.”

But to rancher Corwin Hulsey, it’s more than a sensitive subject, it’s his life.

With his cattle endangered after several losses in the last 12 months, Hulsey felt he had to move them off of land he leases at a cost of $1,600 a month.

“I moved all my cows in trailers with two pickups,” Hulsey said.

And because he moved the animals to his own land, quickly overgrazed, he had to buy hay to feed them.

“I fed them $8,500 worth of hay,” he said. “It took $800 in fuel just to move them back and forth.”

“Last year we lost 25 out of 200 calves,” Hulsey said. “You could attribute maybe two or three of those to other predators.”

Three days after Hulsey took his herd back to the leased land earlier this month, the wolves took another cow.

He said there are three range riders up there now, but the wolves attack mostly at night, and the riders can’t be taking their horses across the land at night.

Hulsey himself has been spending nights near the herd, getting up every hour and a half to walk through the area and watch for wolves.

He doesn’t feel the removal of the alpha female will stop the depredation.

“The whole pack is involved,” he said. “It’s discouraging to me.”

After an overall estimated monetary loss of $16,000, of which about $3,500 has been compensated, Hulsey doesn’t know if he can keep the business alive.

“Sooner or later they run everybody (the ranchers) down and they just give up,” Hulsey said. “I don’t think there is any answer. Several have quit because of the wolves.”

Hulsey said he understands Fish and Wildlife are just trying to do their job.

“Their job is to raise wolves and I have a different approach,” he said. “I don’t have a lot of bad feelings toward a lot of the people. It’s just business-wise, it’s running us out of business.”

Hulsey believes things can only be changed in Washington, by legislation.

He suggested the people in the government offices donate $5,000 each out of their paychecks to help him cover the cost of his losses. But, he said, they don’t want to do that.

Jess Carey, wolf interaction investigator for Catron County, said the Hulsey’s livestock is at continuous risk and his monetary loss has not been compensated.

“The stress of the possibility of losing his family ranch, no sleep and constant vigil has taken its toll,” Carey said.

Michael Robinson, with the Center of Biological Diversity, said the removal of the alpha female could be damaging to the wolf recovery efforts.

“Four stock have been lost at a time when mechanisms that have been set up should have prevented it,” he said. “Fish and Wildlife is in charge of this and needs to have a system. The wolves are being made to pay the price.”

Robinson said the magnitude of what is at stake has to be considered.

When the wolf program started it was projected there would be 102 Mexican grey wolves, including 18 breeding pairs by 2006. But today there are only 58 wolves and six breeding pairs on the ground.

Wolf recovery efforts in other locations have proven positive results restoring balances once lost, Robinson said.

In one example, in Yellowstone National Park, he said, wolves were reintroduced in 1995. Up until then, elk had been destroying streamside vegetation and river valley bottoms at the park. Because of the wolf reintroduction, the elk stopped browsing the unsafe areas in river canyons and many of the tall trees and riparian habitats have been restored.

“The question we have to answer as a society is ‘do we want to be responsible for extinction of an intelligent and creative animal?’” Robinson said. “The answer is ‘no.’”

In the meantime, Corwin Hulsy is driving back to his herd this week because something has killed one of his cattle again and he needs to check it out.


Tuesday, August 21, 2012

Scientific American: Jaguars Win Critical Habitat in U.S.

After years of legal wrangling, the U.S. Fish and Wildlife Service has granted jaguars protected territory

Jaguars, the third-largest cats after lions and tigers—and the biggest in the Western Hemisphere—used to live here. During the 18th and 19th centuries they were spotted in Arizona, New Mexico, California and Texas. Sometimes the cats roamed as far east as North Carolina and as far north as Colorado.

As humans encroached on their territory, the endangered cats' range shifted south. Today it stretches from northern Argentina into Mexico's Sonoran Desert. But jaguars cross into the American Southwest frequently enough for some conservationists to argue that they deserve critical habitat protection. Now, after years of legal wrangling, the U.S. Fish and Wildlife Service (FWS) has agreed. In a  plan (pdf) published yesterday, the agency proposed designating 838,232 acres—an area larger than Rhode Island—as critical jaguar habitat. That means federal agencies cannot fund or authorize any activities that might "adversely modify" the earmarked land, which covers four stretches of mountain in southeastern Arizona, a section of the Peloncillo Mountains on the Arizona–New Mexico border, and a tiny piece of New Mexico's San Luis Mountains. It includes the site of a proposed copper mine in Arizona's Santa Rita Mountains, which will have to be carefully evaluated for its potential impact on jaguar habitat if the proposal is approved later this year, following a period of peer review, public comment (pdf) and economic analysis.

It is a dramatic step for the FWS, which has been dragging its feet on jaguars for years. The conservation group Center for Biological Diversity (CBD) first sued the FWS in 2003 to designate critical habitat and develop a recovery plan for the cats, which have been listed as endangered since 1997. The FWS determined that the species didn't need special protection in the U.S. to survive, compelling the CBD to file another lawsuit in 2007. Then, in 2009, controversy erupted over the death of a jaguar known as Macho B, a male that had been captured in Arizona's Atascosa Mountains, fitted with a radio collar and released, only to be later euthanized after he was found ailing. Macho B's death added urgency to the issue, and a few weeks later a federal district court agreed with the CBD, mandating that the FWS reconsider its previous decision not to grant jaguars critical habitat. Yesterday's proposal was the result of that ruling and includes the canyon in the Atascosa Mountains where Macho B lived.

The FWS reversal should help quell a long-standing debate among conservationists, scientists, government officials, ranchers and local residents about how vital U.S. territory is to the preservation of the species. Although the designated area represents the northernmost part of the jaguar's range, the FWS proposal argues that peripheral populations are essential to the species because their adaptation to different environmental conditions strengthens evolutionary diversity. Michael Robinson of the CBD praised the plan but wishes it went further. "These sky island mountain ranges near the border with Mexico are vital for jaguars to move into the United States," he says. "But we propose adding the Gila and Apache national forests in, respectively, New Mexico and Arizona, where roads are few and prey plentiful, in order to provide habitat for more jaguars, which could genetically bolster the population in northern Mexico."

Stealthy and mystical, jaguars (Panthera onca) lived primarily in North America until the Pleistocene epoch ended around 12,000 years ago, according to the anthropological records of the American Museum of Natural History. Since 1963 only male jaguars have been spotted in the U.S., and then only in south-central Arizona and southwestern New Mexico. "Counting cryptic carnivores is very, very difficult," says Howard Quigley, the executive director of the Jaguar Program of the wild cat conservation group, Panthera, and a co-leader of the Jaguar Recovery Team, a group of scientists and other experts whom the FWS convened to advise the government on its decision.

Some conservationists have long argued that jaguars belong in the American Southwest. Robinson says the cats are part of Arizona's historical flora and fauna and have inherent value to the ecosystem. He also says the government essentially owes them critical habitat, because the animals' demise has come largely at the hands of the government itself. Between 1918 and 1964, records show, a federal predator extermination program killed tens of thousands of wolves and coyotes, along with an unspecified number of jaguars, probably numbering in the dozens. Furthermore, the government initially failed to list jaguars under the 1973 Endangered Species Act—an oversight that took more than 25 years to rectify. The American Society of Mammalogists outlined the same arguments in a 2007 resolution calling for FWS to develop a jaguar recovery plan and delineate critical habitat. With the jaguar's range steadily shrinking, the resolution said, U.S. habitat is "vital to the long-term resilience and survival of the species, especially in response to ongoing climate change." Indeed, fringe populations are crucial to the preservation of a species, says Carlos López González, a Mexican biologist and co-leader of the Jaguar Recovery Team, who has been documenting the cats in northern Mexico since 1997, because they're part of the historical range. "Peripheral animals at the edge of a species are probably the animals that are more adaptable to climate change, global warming, drought and so on," he says.

Other prominent conservationists have argued it is a waste of time and money to focus on jaguar recovery in the U.S. Southwest. Alan Rabinowitz, Panthera's co-founder and president,agrees that fringe populations are critical to a species's preservation—provided they are resident or breeding populations. The closest breeding population to the Arizona border is more than 200 kilometers south in Mexico's state of Sonora. After Macho B's death, when the federal district court ordered FWS to reverse its position on critical habitat designation, Rabinowitz issued a swift rebuke on The New York Times op-ed page, calling the move "a slap in the face to good science." He wrote that the American southwest is "at best, marginal habitat for the animals," arguing that jaguar conservation efforts would be better directed at preserving "corridors" that link breeding populations with one another south of the border. He doesn't dispute that jaguars regularly cross the Mexican border into Arizona and New Mexico, but maintains they don't stay long. "There's something there that they don't like," he says. "If it was habitat they liked and could settle, why go back and forth?"

The best hope for jaguar recovery in the U.S. may lie in diverting resources across the border. "There's great science and money going into jaguar conservation in North America," Quigley says. "I would love to see it head south." Whereas Endangered Species Act funding may technically be used outside the U.S., it is rarely deployed that way. In October 2010 the U.S. Department of Homeland Security earmarked $6.8 million to fund conservation efforts—including just under $3 million "to survey and monitor jaguars and their habitat in Arizona"—in an agreement with U.S. Customs and Border Protection aimed at mitigating the impact of border security projects, such as the fence designed to deter illegal immigration. "The bad news is all the money has to be spent north of the border where there's one jaguar every three years," Quigley says. "We all realize the work needs to be done south of the border. It's horribly ironic and sad." He cites parts of the genetic corridor from Colombia to the central-southern Amazon that are critical to jaguar survival but receive no funding or attention. As the northernmost breeding center, Sonora is also key. "If we want to have jaguars in Arizona, there have to be more resources provided to Mexico," says López González, who has established incentive programs for Mexican ranchers to set photo traps for jaguars rather than kill them. Quigley says other such programs are beginning to win funding south of the border. "Our real purpose is to make sure the two core areas [Jalisco and Sonora] are preserved and there is genetic connectivity between them," he says. "If we do that right, there will be two or three jaguars that come across the border now and then." And someday, maybe more.


Wednesday, August 15, 2012

Lincoln County pushes for interstate forest management

Falling in line with several other counties in the West, Lincoln County commissioners adopted a resolution supporting legislation to enter into an interstate compact agreement with the federal government to cooperatively manage forested lands.

The only hesitation at the commission meeting last month was tied to whether citing "periods of extreme drought" as justification might place limits on the arrangement, and if supporting New Mexico entering into an interstate compact agreement with the federal government might interfere with legislation being considered in Congress.

Commissioner Mark Doth explained that three bills were introduced on the federal level that deal with the issue of placing more power in the hands of states.

"Funding is the question," he said of all three, which were under committee review. "Hopefully, there will be a meshing of the three or one will be stronger than the other."

Colorado House Bill 6089, introduced by U.S. Rep. Scott Tipton, R-Colo., proposes that in reaction to the bark beetle epidemic, drought, deteriorating forest health conditions, and high risk of wildfires on national forests and on Bureau of Land Management property, authorities were established in the Healthy Forest Restoration Act of 2003 to provide emergency measures for high-risk areas identified by states to allow the USFS and BLM to conduct good-neighbor cooperation with states to reduce wildfire risks, and for other purposes.

The bill, which would increase local control over forest management and wildfire prevention and allow states to designate high-risk areas and develop emergency hazardous fuels reduction projects for those areas, was referred to the Committee on Agriculture and to the Committee on Natural Resources.

In July, the House Natural Resources Subcommittee on National Parks, Forests and Public Lands discussed the Depleting Risk from Insect Infestation, the Soil Erosion and Catastrophic Fire Act of 2012, H.R. 5960, which proposes expanding the authority of the USFS and BLM to enter agreements with states. The bill, introduced by U.S. Rep. Ed Markey, D-Mass., also creates guidelines responding to insect infestations and disease on federal land.

Commissioner Kathryn Minter said none of the bills allow wilderness areas to be touched or permit clear cutting. Coming from Washington state, she knows that many species won't reseed without a clear cut. She also would want a provision to hold back some federal tax dollars to pay for firefighting, she said.

"This is a first step," Doth said.

"So the state would manage the forest, but the land still belongs to the federal government?" Commission Chairman Eileen Sedillo asked.

Not according to statehood enabling language, Minter replied.

"I'm 100 percent in favor, but the first paragraph references periods of extreme drought," Commissioner Tom Battin pointed out. "I would want the intent of the resolution to exist in perpetuity so states can take a permanent place in the question of managing forests, not just in drought."

The county attorney said the language could be seen as a limiting factor and could be removed, but commissioners changed their minds after County Clerk Rhonda Burrows said the language was adopted by the New Mexico Association of Counties affiliate and is being adopted intact by other entities to be presented to the association board. Minter also said she preferred that drought be mentioned.

Karyl Williams of Capitan raised the possibility that the resolution could cause problems if legislation subsequently is passed by Congress. She said widespread, bipartisan support is growing for states to assume a larger role in the care of the forests.

The legislation follows a Utah initiative to take back all public lands, more than 20 million acres, and benefits not given in an enabling act when it became a state, she said. In March, Utah Gov. Gary R. Herbert, a Republican, signed into law House Bill 148, which asks the federal government to give back the land. Bills patterned after Utah's are being prepared for filing next year in Colorado, Idaho, Montana and New Mexico, according to wire reports.

"A time limit would be given to the federal government to get out and we (in New Mexico) would have control of over 40 percent of the state (that now is under federal control) minus the military bases." Williams asked commissioners to postpone a vote until the District 51 state representative could be scheduled to explain the initiative.

Burrows said she heard the argument before, but at the association meeting, "It was generally agreed upon this actually would not prohibit any further action for reclaiming of state rights, and entering into the compact with other Western states actually might help."

"It's just a resolution for the Legislature to look at for the greater picture," Sedillo said.

Commissioner Jackie Powell said the Coalition of Counties, like the other entities, is looking for more local input. "They are focused on endangered species," she said. "It's ridiculous to think we can all be covered by one (policy). Our forests are nothing like those in Washington state."

The adopted resolution states that periods of extreme drought continue in the West and the increase in wildfire fuel loads on forest lands have created a risk of catastrophic fire, damage to watersheds and long-term water supplies, as well as other threats to health, public safety and property.


Friday, August 3, 2012

Appeals court tosses out Hage judgment


Capital Press

A federal appeals court has thrown out a $4.4 million legal judgment that deceased rancher and Sagebrush Rebellion icon Wayne Hage had previously won from the federal government.

The U.S. Court of Appeals for the Federal Circuit has reversed an earlier court decision that ordered the U.S. Forest Service to compensate Hage for infringing on his property rights.

The descendants of Hage won a legal victory in the case in 2008, two years after his death and 17 years after the lawsuit was initially filed.

The judge ruled that the agency deprived Hage of his water rights by building fences that prevented him from accessing streams in the Toiyabe National Forest in Nevada.

Hage owned easements that allowed him to transport the water over federal land through ditches, which he claimed the Forest Service prevented him from maintaining.

The lawsuit also sought compensation for the fences, roads and improvements to water sources that Hage built on federal land before his grazing permit was revoked.

After years of litigation, a federal judge agreed with the complaint's arguments and awarded Hage's estate roughly $2.9 million for his water rights and $1.5 million for the value of improvements.

The government challenged that ruling, which a three-judge appellate panel has now reversed on several grounds.

Hage could have applied for a special permit to maintain the ditches that conveyed his water, so the claim that the government prevented him from doing so isn't "ripe" for federal court, the most recent ruling said.

Building fences around streams also isn't a physical taking of property, because Hage hasn't demonstrated that he could put the stream water to beneficial use, the appeals court said.

Water rights only allow the owner to use water that he can put to beneficial use, but the Hage family hasn't shown "there was insufficient water for their cattle on the allotments or that they could have put more water to use," the ruling said.

The appellate court also overturned the award for rangeland improvements, ruling that Hage could have sought compensation directly from the agency instead of in federal court.

Aside from vacating the financial award to Hage's family, the most recent ruling has caused uncertainty about legal principles in such conflicts, said Brian Hodges, an attorney for the Pacific Legal Foundation property rights group who monitored the case.

"The decision raises more questions than it answers," Hodges said.

For example, the appellate judges did not resolve the key issue of whether the government even had the right to regulate Hage's ditches, he said.

Hage claimed the Forest Service did not because his water rights predated the agency's authority over the land.

"It's unsatisfying the court assumed the federal regulations were valid without first determining whether water rights holders like Hage have a right that is superior to the regulations," Hodges said.

The Hage estate can still ask for reconsideration from a broader "en banc" panel of appellate judges, or request the U.S. Supreme Court to review the case, he said.

Hage's battle with the Forest Service is one of the sparks that started the "Sagebrush Rebellion" of popular resistance to changes in federal land policy, Hodges said.

"This case exemplifies the abuses the Western ranchers and natural resource industries suffered at the hands of the federal government," he said.