Feds File Motion to Weaken Ranchers' Claim

By Jeff Tucker
SUN Staff Writer

Published:

Thursday, November 29, 2012 9:59 AM MST

    Attorneys for the federal government argued this month to dismiss a key portion of a lawsuit concerning grazing rights on historic land grant areas in Northern New Mexico. Plaintiffs say if approved by the federal judge, the motion would limit damages that could be recovered.

    The lawsuit, filed in January against the U.S. Forest Service by the Jarita Mesa and Alamosa livestock grazing associations, two dozen Hispanic ranchers with permits to graze in the Carson National Forest, and the Rio Arriba County commissioners, focuses on a 2010 decision by Carson National Forest El Rito District Ranger Diana Trujillo to cut cattle grazing by 18 percent on the Jarita Mesa and Alamosa grazing allotments.

    “Plaintiffs and their ancestors are Hispanic stockmen whose families have been grazing livestock in this area for many generations,” the plaintiffs’ lawsuit states. “In fact, most of their families were grazing livestock in this area before the United States Forest Service existed. Grazing livestock is an integral part of their existence and is a central part of life in the villages they reside in and in all of Northern New Mexico.”

    At a Nov. 9 federal court hearing in Albuquerque, U.S. District Judge James O. Browning heard the federal government’s motion to dismiss the first count of the lawsuit, which charges Trujillo with unconstitutional conduct.

    Richard Rosenstock of Sante Fe, co-counsel for the plaintiffs, said if the federal court dismisses the First Amendment count of the lawsuit, it would limit the plaintiffs’ ability to seek relief under the Administrative Procedure Act, which is a body of administrative law governing the review of federal agency decisions.

    Rosenstock said it is doubtful the Act would allow sufficient discovery to prove discrimination.

    Rio Arriba County officials and ranchers say Trujillo retaliated against them, violating their First Amendment rights, by cutting grazing by 18 percent after the ranchers complained to their legislators and the forest service about Trujillo’s management of grazing issues. They contend the forest service is trying to push them from land that has been ranched by their families for centuries, and that Trujillo veered from normal practices by not implementing the stocking levels recommended by forest service scientists, which would have kept the number of livestock head unchanged from 1980, with modified rangeland improvement.

    “Livestock grazing has played a central role in the cultural, social and economic fabric of the Hispanic people in Northern New Mexico since 1598, becoming fully developed in the area by the late 1690s,” the plaintiffs’ lawsuit states. “Prior to the United States exercising sovereignty over what is now Northern New Mexico in 1848, most, if not all, of the land which now constitutes the El Rito Ranger District of the Carson National Forest, including the land where the Jarita Mesa and Alamosa allotments are located, was community land grant land that supported the local communities.”

Grazing right reduction in effect

    The 18 percent reduction of grazing opportunities went into effect the 2011 season, and is effective for about 10 years, until the forest service’s next environmental assessment of the Jarita Mesa and Alamosa allotments.

    The plaintiffs sued Trujillo in both her individual and official capacities. The ranchers contend Trujillo violated their First Amendment right to petition their government for the redress of grievances.

    The forest service says management practices by the ranchers have contributed to the overuse of meadows, that fences were either poorly maintained or in disrepair on the two allotments, and that current grazing levels are unsustainable.

    The ranchers say in the lawsuit the property rights of Hispanics have been ignored and an institutional bias exists in the forest service. The ranchers noted a 1972 forest service policy, implemented following a 1967 raid of the Tierra Amarilla Courthouse over unresolved land grant issues, which said Hispanic residents of Northern New Mexico had a relationship with the land. The policy declared their culture a resource that must be recognized when setting forest service policies.

    “(T)his loss of grazing permits causes not only severe economic harm to plaintiffs, but also grave damage to viability of the unique cultural and social fabric of their families and communities, the preservation and enhancement of which has been recognized by defendant forest service as essential, not just to the residents of Northern New Mexico, but to the entire nation,” the plaintiffs’ lawsuit states.

    Rosenstock said if the First Amendment count is dismissed, it would prevent the plaintiffs from recovering compensatory and punitive economic damages. He said, at best, an Act proceeding could result in a reversal of Trujillo’s decision and limited restitution, despite the economic hardship he says the ranchers have suffered and continue to suffer under the 18 percent grazing reduction.

    Rosenstock also said if the First Amendment count is dismissed, it would prevent the plaintiffs from suing Trujillo for damages as both a federal employee and a private individual, which Rosenstock said is necessary to provide a significant deterrent against First Amendment infringements by government officials.

    The lawsuit also charges Trujillo violated various environmental and administrative laws, including regional forest service policy requiring that management decisions support the survival of Native American and Hispanic traditions. If the court grants the government’s motion to dismiss the plaintiffs’ First Amendment count, the remaining counts charging violations of the National Environmental Policy Act, the National Forest Management Act, the Federal Sustained Yield Forest Management Act and forest service policy would all fall under the purview of the Administrative Procedures Act.

    “We asserted a claim for damages for the decision for the grazing permit reduction,” Rosenstock said. “The judge can reverse the 18 percent reduction based on finding Trujillo was motivated by retaliatory action.”

Fed’s argument

    Assistant U.S. Attorney Ruth Keegan argued to dismiss the First Amendment count, saying a successful lawsuit such as that filed by the ranchers could paralyze government officials with the fear of being sued for any decisions they make.

    Browning noted law enforcement officers may be sued as private individuals, yet they manage to do their jobs.

    Keegan argued the U.S. Supreme Court doesn’t allow federal employees outside of law enforcement to be personally sued for damages.

    The judge is expected to issue a ruling in the near future on the government’s motion to dismiss the First Amendment count.

    Rosenstock said if the First Amendment count is dismissed, he and co-counsel Simeon Herskovits, of Taos, would continue the lawsuit through an Act proceeding.

    The Rio Arriba County commissioners joined the lawsuit against the forest service to keep grazing permits for local ranchers on federal lands. In addition, Rio Arriba County, along with local school districts, receives payment in lieu of taxes from the forest service that are derived in part from grazing fees.

    District III Commissioner Felipe D. Martinez, who attended the Nov. 9 hearing in Albuquerque on behalf of the commissioners, said the County reaps tens of thousands of dollars a year from the grazing fees and livestock taxes, in addition to increased economic activity throughout the county and region.

    “The lawsuit is a long time in coming,” said Martinez, whose father once owned a grazing permit on the Alamosa allotment. “For too many years, Native Americans and Hispanic Americans have not been able to benefit completely from the resources on federal lands. The thing is that we’ve been here the longest. Our ancestors shed a lot of blood, sweat and tears to colonize this area.”

    “We’re hoping he’ll be fair, we want a fair shake,” Martinez said of the federal judge. “We want the judge to know we’ve been treated differently, unfairly, that we are being retaliated against for expressing our right to free speech and to petition for the redress of our grievances.”

    At a Nov. 4 public meeting in Abiquiú, Rio Arriba county attorney Ted Trujillo said the public land restrictions would result in the extinction of Hispanic and Native American ranchers who have run livestock on forest lands for generations. He also said the grazing restrictions would increase catastrophic forest fires due to over-growth and have a negative economic impact on local agricultural communities.

    The Rio Arriba County Planning Office officials said in a November 2011 County news release the Hispanic and Native American ranchers of Rio Arriba County have suffered economic hardship and the diminishment of customs and traditions due to a lack of representation with the U.S. Department of Agriculture.

    Planning office officials are recommending the USDA implement an historic cultural sensitivity policy, observe a social justice requirement during management and decision-making by the forest service and implement regional-based management to promote customs.

    Forest service public information officer Mark Chavez declined to comment on the lawsuit since it is in litigation.

Rio Grande Sun

Climate Change Increases Stress, Need for Restoration on Grazed Public Lands

Released: 11/13/2012 1:10 PM EST
Embargo expired: 11/14/2012 12:05 AM EST
Source: Oregon State University

Newswise — CORVALLIS, Ore. – Eight researchers in a new report have suggested that climate change is causing additional stress to many western rangelands, and as a result land managers should consider a significant reduction, or in some places elimination of livestock and other large animals from public lands.
A growing degradation of grazing lands could be mitigated if large areas of Bureau of Land Management and USDA Forest Service lands became free of use by livestock and “feral ungulates” such as wild horses and burros, and high populations of deer and elk were reduced, the group of scientists said.
This would help arrest the decline and speed the recovery of affected ecosystems, they said, and provide a basis for comparative study of grazing impacts under a changing climate. The direct economic and social impacts might also be offset by a higher return on other ecosystem services and land uses, they said, although the report focused on ecology, not economics.
Their findings were reported today in Environmental Management, a professional journal published by Springer.
“People have discussed the impacts of climate change for some time with such topics as forest health or increased fire,” said Robert Beschta, a professor emeritus in the College of Forestry at Oregon State University, and lead author on this study.
“However, the climate effects on rangelands and other grazing lands have received much less interest,” he said. “Combined with the impacts of grazing livestock and other animals, this raises serious concerns about soil erosion, loss of vegetation, changes in hydrology and disrupted plant and animal communities. Entire rangeland ecosystems in the American West are getting lost in the shuffle.”
Livestock use affects a far greater proportion of BLM and Forest Service lands than do roads, timber harvest and wildfires combined, the researchers said in their study. But effort to mitigate the pervasive effects of livestock has been comparatively minor, they said, even as climatic impacts intensify.
Although the primary emphasis of this analysis is on ecological considerations, the scientists acknowledged that the changes being discussed would cause some negative social, economic and community disruption.
“If livestock grazing on public lands were discontinued or curtailed significantly, some operations would see reduced incomes and ranch values, some rural communities would experience negative economic impacts, and the social fabric of those communities could be altered,” the researchers wrote in their report, citing a 2002 study.

Among the observations of this report:
• In the western U.S., climate change is expected to intensify even if greenhouse gas emissions are dramatically reduced.
• Among the threats facing ecosystems as a result of climate change are invasive species, elevated wildfire occurrence, and declining snowpack.
• Federal land managers have begun to adapt to climate-related impacts, but not the combined effects of climate and hooved mammals, or ungulates.
• Climate impacts are compounded from heavy use by livestock and other grazing ungulates, which cause soil erosion, compaction, and dust generation; stream degradation; higher water temperatures and pollution; loss of habitat for fish, birds and amphibians; and desertification.
• Encroachment of woody shrubs at the expense of native grasses and other plants can occur in grazed areas, affecting pollinators, birds, small mammals and other native wildlife.
• Livestock grazing and trampling degrades soil fertility, stability and hydrology, and makes it vulnerable to wind erosion. This in turn adds sediments, nutrients and pathogens to western streams.
• Water developments and diversion for livestock can reduce streamflows and increase water temperatures, degrading habitat for fish and aquatic invertebrates.
• Grazing and trampling reduces the capacity of soils to sequester carbon, and through various processes contributes to greenhouse warming.
• Domestic livestock now use more than 70 percent of the lands managed by the BLM and Forest Service, and their grazing may be the major factor negatively affecting wildlife in 11 western states. In the West, about 175 taxa of freshwater fish are considered imperiled due to habitat-related causes.
• Removing or significantly reducing grazing is likely to be far more effective, in cost and success, than piecemeal approaches to address some of these concerns in isolation.
The advent of climate change has significantly added to historic and contemporary problems that result from cattle and sheep ranching, the report said, which first prompted federal regulations in the 1890s.
Wild horses and burros are also a significant problem, this report suggested, and high numbers of deer and elk occur in portions of the West, partially due to the loss or decline of large predators such as cougars and wolves. Restoring those predators might also be part of a comprehensive recovery plan, the researchers said.
The problems are sufficiently severe, this group of researchers concluded, that they believe the burden of proof should be shifted. Those using public lands for livestock production should have to justify the continuation of ungulate grazing, they said.
Collaborators on this study included researchers from the University of Wyoming, Geos Institute, Prescott College, and other agencies.

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What you didn't know about newest senator

State Sen. Pat Woods, who took office last week, says he has packed a lifetime of lessons into the last eight months. "I guess I got a Ph.D. in politics," said Woods, R-Broadview.
Woods enters the Legislature as a bigger-than-life character, thanks in part to a fellow Republican, Gov. Susana Martinez.
She used her influence in the Senate primary to try to defeat Woods, sending money and her political might to help his opponent, Angie Spears.
More important, the Martinez forces went negative against Woods, a tactic that backfired.
A friend to most in the Clovis area, Woods seemed to pick up votes as the attacks against him escalated.
Woods attended his first committee meeting Thursday, though he was so reserved he first sat down with the audience instead of the lawmakers.
Rep. Debbie Rodella, chairwoman of the Economic and Rural Development Committee, and other legislators invited Woods to join them at the lawmakers' table.
Woods once donated $100 to Democrat Rodella's campaign, saying he found her to be a hardworking and fair-minded legislator. He also gave $100 to Sen. Timothy Keller, another Democrat.
Spears and her political advisers used those contributions to try to paint Woods as a turncoat seeking to buy influence in Santa Fe.
Another claim against him was that he was a lobbyist trying to run for office. Woods said he used to travel to Santa Fe once or twice a year on behalf of the Farmers Electric Cooperative Board, an organization he served for 20 years. But never was he a lobbyist, he said.
With the mean campaign behind him, Woods is setting his sights on service in the Senate.
Unopposed in next week's general election, he took office early. Former foe Martinez appointed him as the senator for Senate District 7 after incumbent Clint Harden resigned in October.
Harden, also a Republican, did not run for re-election. He threw his support to Woods in the primary election, unhappy with the tactics of the governor and her political adviser.
Even after all the headlines Woods made campaigning, he is still a mystery man in some ways. He says he will bring his life experiences to the Senate, including a painful one.
Woods, 63, has dyslexia, but it has not stopped him from being a voracious reader. Eva, his wife of 41 years, says he pores over books and newspapers each night, retaining incredible amounts of information.
But, Woods says, he has a hard time speaking in public because of his dyslexia. Words that ought to flow simply and naturally become cluttered in his mind when he is in front of an audience.
His sons, Toby and Charlie, had such severe dyslexia that Eva says they were below-par readers in third grade. One of Martinez's legislative initiatives is state-mandated retention of thousands of third-graders who read poorly.
The Woods kids forged ahead instead of being retained. Through study and plenty of help at home, both graduated from college.
Toby taught high school math before becoming manager of the family's 100-year-old farm. Charlie is an electrical engineer in Denver.
"Early childhood intervention is the secret" to kids becoming proficient readers, Woods said.
He also has a daughter, Loralee, who is an attorney in Roswell. She represented Democratic state Sen. Tim Jennings before the state Supreme Court last spring, when a rival tried to throw him off the ballot on technical grounds.
Pat Woods said he had an audience with Martinez before she appointed him to the Senate. The meeting occurred at his request, and they talked mostly about capital projects for his district.
Woods said he did not bring up the primary campaign but Martinez did. She said she committed to support Spears early on. Nothing was said about the negative tactics.
As a senator, Woods said he would approach the job cautiously, listening and learning before introducing legislation.
But he said a concept he heard about in Utah fascinated him. The idea is for states to reclaim certain federal land within their borders.
BLM and Forest Service property would revert to state or private control. Woods said such a system might invigorate New Mexico's rural economy through more farming, ranching and logging. He also said he recognized that such a dramatic change would require approval from Congress.
But the possibilities of using the land to improve the economy excite him.
"Local control is the best government," Woods said.
He comes to the Senate with some fixed positions. For instance, he agrees with Martinez that a 2003 law allowing illegal immigrants to obtain New Mexico driver licenses should be repealed.
But, Woods said, he intends to work with Democrats and fellow Republicans to spend money wisely, approve laws only when necessary and solve problems.
"I don't see a big wreck with working with another elected official," Woods said.  link

Environmental group is denied fee award even where it successfully challenged agency decision

In Western Watersheds Project v. Ellis, 2012 DJDAR 13948 (2012), the U.S. Court of Appeal for the Ninth Circuit decided a claim for attorney fees made by an environmental organization arising from grazing permit litigation.
In summary, Western Watersheds (Western), an environmental organization, sued the Bureau of Land Management’s (BLM) renewal of grazing permits in an area managed by BLM called the Jarbridge Resource Area. The district court concluded that the BLM failed to protect the environmental habitat in the area and issued an injunction against the grazing permits.
Based on the district court’s ruling, the BLM and Western settled the litigation, including all issues relating to attorney fees to that point in time. Subsequent to the 2007 settlement, a severe wildfire erupted in the Jarbridge Resource Area which greatly changed the landscape of the Resource Area.
As a result, the BLM once again allowed grazing on unburned areas of the Resource Area. Western successfully challenged the post-fire grazing conditions and authorizations. Western then asked for attorney fees as the prevailing party pursuant to the Equal Access to Justice Act (EAJA). The district court denied Western’s motion. The Ninth Circuit affirmed the lower court’s decision declining to grant fees.
The Ninth Circuit noted that under the EAJA, a prevailing party is generally entitled to fees against the government, unless the position of the government was “substantially justified.” In making a call whether or not the government’s position was “substantially justified,” a court must look to both the government’s position during litigation and to the agency action that the plaintiff’s lawsuit was based on.
The Ninth Circuit concluded that the district court properly considered the reasonableness of the BLM’s underlying decision to issue grazing authorizations after the fire. For that reason, this court was convinced that the district court correctly determined that the BLM was substantially justified in its position. The motion for fees under the EAJA was denied.