Friday, November 30, 2012

Feds File Motion to Weaken Ranchers' Claim

By Jeff Tucker
SUN Staff Writer
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

No comments: