Long land battle

Environmentalists and an aggressive federal government are trying to remove ranchers from federal lands they have used for generations

By Angela Lu

     Two coils of rope and a cowboy hat hang on bull horns mounted over Wayne Hage Jr.’s desk, the rest of his office dedicated to shelves upon shelves of law books. In the evening at his generator-powered Nevada ranch, Hage and his sister Ramona Morrison engage in repartee on court cases and property laws, as his three young children roast marshmallows in the living room fireplace. 
     If Hage and Morrison had their way, they’d be spending their days focused on taking care of the Pine Creek Ranch: galloping through shrub-dotted valleys and jutting rocky mountains, rounding up stray cattle, and following in the footsteps of generations before them. Instead, overgrown weeds line the dirt road in Meadow Canyon, as Hage has just returned from a weeklong visit with his attorney to prepare for an upcoming appeal. Morrison now lives near Reno working as a legal consultant specializing in property rights in the West.      
    The Hage family has now fought a 35-year battle against the federal government to protect the family’s grazing and water rights. With more than 87 percent of Nevada’s land owned by the federal government, ranchers are allowed grazing permits and many have water rights dating back to the 1800s. Yet since the Hages moved to their 752,000-acre ranch near Tonopah, Nev., in the late ’70s, officials from the Bureau of Land Management (BLM) and U.S. Forest Service have buried the Hages with onerous regulations with an aim to kick them and their cattle off the land. 
     The tale of cowboys (and Indians) vs. federal bureaucrats (and environmentalists) stretches across the Western United States, where more than 50 percent of the land is federally owned, and goes back to the days of the Sagebrush Rebellion in the 1970s. Although the movement fizzled out when Ronald Reagan was voted president, the regulations continued to tighten and skirmishes broke out in the courtroom as well as on the range. Environmentalists aiming to wipe out all ranching on federal land have succeeded in getting the government to force more ranchers out of their livelihoods. In response, Western states are trying to transfer federal lands to state control, believing the federal government has broken its trust with its citizens.
     BUMPING DOWN THE DIRT ROADS in Pine Creek Ranch is a time warp to a different age. After miles of nothing but arid Nevada desert, cotton candy skies, and the occasional cluster of munching cows, the ghost town of Belmont emerges in the distance. Crumbling facades from the 1865 mining town stand next to renovated buildings, like Dirty Dick’s Belmont Saloon. Inside the dimly lit room warmed by a wood-burning stove, hunters and ranchers with cowboy hats and leathered faces catch up on the latest news. One man pointed to the elk bloodstain on his khakis as a sign of his success that day, as an older man with an unruly white beard contemplated if he was celebrating his 49th or 50th wedding anniversary. He shrugs his shoulders and asks: “Who gets married in the middle of hunting season anyway?”
     While Belmont was still in its heyday in 1866, Hage’s predecessors secured rights to water sources around the area to use for their cattle. Although Nevada became a state in 1864, the federal government did not dispose of the land in the state, in part because much of the land was too arid for homesteading. The federal government kept the land under its control, while recognizing vested water rights and grazing preferences. Currently, Pine Creek Ranch is 99 percent public land, and 1 percent privately owned. 
In 1934, Congress passed the Taylor Grazing Act, which created grazing districts regulated by the federal government to ensure that the land would be put to good use. Ranchers had to pay for 10-year grazing permits, and priority was given to those who already had water rights in the area. While the purpose for the system was intended for good, many ranchers believe that the pendulum has now swung too far the other way as BLM officials make it nearly impossible for ranchers to stay in business. 
     Morrison remembers her excitement when her parents, Wayne and Jean Hage, brought her and her four siblings to their new home of Pine Creek Ranch in 1978. The horse-loving teen cherished the times her dad brought her along to round up cattle on horseback. The earlier owners sold the ranch because of trouble with the Forest Service, yet the elder Wayne Hage thought that with his experience working with the feds on his previous California ranch, he wouldn’t face the same problems.

But from the time he took over, the objective of the officials was clear. Coveting the ranch’s precious water, BLM officials constantly changed the number of cattle allowed on permitted land and when they could graze on the land. The Hages received five-day notices to remove their cattle, a near impossible task when dealing with thousands of cattle. And when they couldn’t keep up with the changes, armed officials would show up at their door with citations and fines. 

    Morrison and Hage at Pine Creek RanchIn 1991, the Forest Service cut the number of cattle allowed on the Meadow Canyon allotment by 35 percent, then by 100 percent, forbidding any cattle to graze on that area for five years to “recover” the land. But the Hages noted a darker purpose—not using the water for five years would result in an abandonment of a water right, and the Forest Service would have the rights to the water. As much as the Hages and ranch hands tried to keep cattle from wandering onto the unfenced Meadow Canyon allotment, they couldn’t keep up. Thirty Forest Service riders, some armed with semiautomatic weapons, confiscated more than 100 cattle, selling them and keeping the profit. 

    Afraid that they’d lose more of their livelihood, Hage Sr. sold off the rest of the cattle and filed a takings claim in the U.S. Court of Federal Claims. “The most heartbreaking image I have from that period is of the two-foot-tall weeds growing in the corrals across from the ranch house,” Morrison wrote in Range Magazine. For the next two decades, two generations of Hages pitted themselves against the federal government in proving that they legally had pre-existing rights to water on the allotment, as well as the accompanying forage, easements, and improvements. They dug up a total of 501 ranch titles dating back to 1866.
    Once the court cases began, BLM filed felony charges against Hage Sr. for clearing brush that blocked the water flow in their ditch, refused to renew the his grazing permits and fined him for trespassing when he continued grazing, and even intimidated witnesses by writing up trespass fees. Every time judges sided with the ranching family, the federal government would appeal, dragging on the legal process. 

‘A lot of people … realized that even when you win in the federal courts … the bureaucrats are still going to disobey the federal court and do whatever they want to do.’ —Wayne Hage

    After the death of both Wayne and Jean Hage, the BLM and Forest Service sued the younger Hage and the family’s estate in 2007 over their trespassing cattle. In 2012, years after Morrison’s parents had passed away, Federal District Court Chief Judge Robert Jones found that grazing preference had due process rights, meaning the government couldn’t take away grazing permits or reduce livestock lower than historical numbers. He also declared that “the Forest Service first and then BLM entered into a conspiracy, a literal intentional conspiracy, to deprive the Hages of not only their permit grazing rights, for whatever reason, but also to deprive them of their vested property rights under the takings clause.” He referred two BLM and Forest Service officials to the U.S. attorney for consideration to be prosecuted for the conspiracy.
    Yet nothing has been done since, and the federal government has again appealed the decision in the 9th U.S. Circuit Court of Appeals. “A lot of people saw that and realized that even when you win in the federal courts, even when the federal court is on your side, the bureaucrats are still going to disobey the federal court and do whatever they want to do,” Hage said.
    IT’S THAT FEELING OF FRUSTRATION that led some to “pick up a rifle, load it with ammunition, and say ‘No more. We can’t do this anymore,’” Hage said. Last April, the nation stood transfixed as brash Nevada cattle rancher Cliven Bundy gathered up hundreds of supporters—some armed—to protest a federal cattle roundup at his ranch. Sen. Harry Reid, D-Nev., deemed them “domestic terrorists” while many conservatives considered Bundy a folk hero. The BLM ended up backing down and returning Bundy’s cattle without a shot fired, and Bundy’s popularity waned after making a racist comment.
    But the standoff was the result of a long battle that started when the United States declared the Mojave Desert tortoise an endangered species in 1989 and told Clark County ranchers to move their cattle off the land immediately. The ranchers hired attorney Karen Budd-Falen, who argued in court that the cows were not killing tortoises, and the judge ruled in their favor. Yet the next year when permits were renewed, the BLM again told the ranchers to leave. Another court case again sided with the ranchers, yet the BLM proved that they could issue the same decision year after year. 

    Clark County, which also wanted those same lands to expand Las Vegas, received a permit to develop on that land—which would inadvertently kill tortoises—as long as they paid $550 per acre to fund conservation efforts in another area. The county offered to buy the ranchers out, and about 50 ranchers left, leaving only Bundy to stand his ground and continue grazing without a permit. For the next two decades he ignored the trespass fines the BLM issued him, claiming the federal government did not have authority over the land, until he owed about $1 million and the agency tried to confiscate his cattle.

    “I can’t say I agree with the way Cliven handled it, and I don’t think what he did … was legal, but I totally get what drove him to do what he did,” said Budd-Falen, who herself is a fifth-generation rancher. “I totally get it. I think you’re going to see more of that because we’re not left with any choice.”

     Budd-Falen remembers growing up that when her father had a dispute with the BLM, the local official would come sit down at their kitchen table to discuss their options and come up with a solution. But now the decisions are made higher up on the ladder, with bureaucrats in Washington, D.C., determining what happens to a piece of land thousands of miles away. The other factor is national environmental groups that aim to rid the public land of livestock. On Western Watersheds Project’s website, it blames ranching for native species endangerment and desertification: “The time has come to end public lands ranching.”

    But Morrison argues that ranchers have the strongest economic incentive to take care of the land, to make sure cattle have enough feed to survive on the land for the next generation and maintain water sources for all wildlife. Without grazing, thick overgrown grass becomes kindle for dangerous wildfires and other species are affected. Morrison argues that what the ranchers are doing harkens back to one of the first roles given to man in Genesis—to subdue the earth. 

    States have also jumped in, passing laws that would transfer the control of some of the federal lands to the states. In 2012, state Rep. Ken Ivory of Utah helped pass a bill that would require the federal government to transfer the land to Utah by the end of this year. If the government doesn’t comply, which looks likely, the state plans to file a lawsuit. While previous attempts in land transfer have been shot down in the courts, Budd-Falen believes Ivory’s law could stand a chance constitutionally.

    Ivory bases his argument on the Doctrine of the Equality of States and claims that the Western states did not come into the union on an equal footing as states in the East since the government did not dispose of the land within their borders. Six other states—Arizona, Wyoming, New Mexico, Colorado, Nevada, and Idaho—have also pushed for the government to return millions of acres of public land. 
    Critics have questioned if the state could afford to take care of the land and fear state control would close the land to the public. But Ivory believes Utah would be more effective at managing the land since it wouldn’t need to get every move approved by Washington. He pointed to studies that showed that Washington state, which manages its forests, is 1,283 times more effective at generating revenue. He also suggested that even federal grants to the state could allow for more efficient management.
    As Hage prepares to wade through even more litigation, he doesn’t see the handover as the ultimate solution to his current ranching woes, but recognizes it’s a necessary step forward. “I think some states will be [better than the federal government], some states may not be. But the one thing we do know for sure is that the federal government agencies have lost the trust and respect of the citizens.”

World Magazine
 

Court sides with ranchers over higher bid for state land lease

PHOENIX -- The Arizona Court of Appeals has rejected a constitutional challenge to the legality of procedures used by the state Land Department to determine who gets to lease state land for grazing.

In a unanimous ruling, the judges rejected the contention by WildEarth Guardians that it should have been awarded the new 10-year lease. Instead the state agency opted to give a new lease to the ranchers who had been there before.

Appellate Judge Kent Cattani, writing for the court, rejected arguments by attorney Tim Hogan of the Arizona Center for Law in the Public Interest that the Land Department ignored a constitutional requirement that the leasing of public lands be made to the "highest and best bidder at a public auction.'

In this case, Hogan said, the agency never even opened the bid by WildEarth Guardians, instead determining that the ranchers would be better stewards of the land. But that action, said Hogan, may have cheated the state -- and the public schools that benefit from trust land proceeds.

Hogan said he will seek Supreme Court review.

The case involves a 6,237-acre grazing lease held by Galyn and Roxanne Knight adjacent to property they own near Springerville. That lease was set to expire in November 2006.

Before the end of the lease, WildEarth filed an application to lease the same land, but not to graze animals but instead let it rest. That conflict required the Land Department to ask each applicant to submit information for it to determine which has the highest and best bid.

The agency's director of the natural resource division concluded that the Knights had a superior offer, even outweighing WildEarth's offer of additional rent. But Maria Baier, who was land commissioner at the time, directed the parties to submit sealed bids for additional rent.

Baier, however, subsequently accepted the recommendation of a hearing officer and agreed to let the Knights have the land, at 40 cents per acre per year, without looking at the bids.

Cattani noted that the federal government gave Arizona about 10 million acres of land when it became a state in 1912, with the proceeds used mostly to support public schools. About 9.2 million acres remains.

He acknowledged the requirement for leases to be made to the highest and best bidder, and that leases not made in "substantial conformity' with this requirement are void.

But Cattani said state law allows the land commissioner not to take bids if one bidder's right or equity on the lease outweigh an offer of additional rent. And he said that meets what the Arizona Constitution requires.

Looking specifically at Baier's decision, Cattani said she considered the ability to protect the land.

The Knights, Cattani said, monitor the land daily, with at least 10 people who live either or or within eight miles of the property. By contrast, WildEarth indicated the land would be monitored once every two weeks.

Cattani said the property has sand, gravel and timer, includes "irreplaceable Native American ruins and fossil beds' and has been the target of illegal dumping and looters. The judge said the record shows that the Knights have better ability to monitor and protect the land, which they had leased for 28 years.

But Hogan said the constitutional requirements to take and open bids are mandatory, and all that trumps the statutory authority given to the land commissioner.

"The constitution says 'highest and best bidder,' ' he said. "How do you determine that without a bid?'

Hogan acknowledged that even the constitution does not guarantee a lease goes to the highest bidder. He said the Land Department also is entitled to weigh what is best for the land and the state.

But he said that does not give the agency the right to "ignore the 'highest' part and determine the 'best' part.'

"They're a trustee here,' Hogan said.

"They don't seem to care how much money they could make off this lease,' he continued. "And it's very clear that no amount of money was going to convince them that (higher bid) would overcome what they say are the 'superior equities' of the rancher.'

Cattani said there was some evidence that what WildEarth was offering would have resulted in $79,344 additional rent over the 10-year period. Hogan said, though, there is nothing to show how much more WildEarth was offering since Baier never opened the bids.

"It could have been $10 million,' he said. "Is that enough?'

If nothing else, Hogan said opening the bids would have given the Land Department the opportunity to ask the Knights if they were willing to pay more. That did not happen.

"The rancher gets the lease at the minimum appraised rate,' Hogan said.

"How does that benefit the trust here, the public schools,' he said. "It's the worst of all worlds here.'

Source

Megadrought in U.S. Southwest: A Bad Omen for Forests Globally

by caroline fraser

As brutal fires torch tinder-dry dense forests and neighboring homes in the American West, researchers are examining the relationships between drought, wildfire, and a warming climate, predicting mass forest die-offs and prolonged megadrought for the Southwest. These forces are accelerating, they say, and already transforming the landscape. Unchecked, they may permanently destroy forests in the southwestern U.S. and in some other regions around the world.

Across the West, “megafires” have become the norm. With climbing temperatures, after a century of fire suppression, the total area burned has tripled since the 1970s, and the average annual number of fires over 10,000 acres is seven times what it was then. Fighting and suppressing fires costs more than $3 billion a year, not to mention lives lost. So understanding what, if anything, can be done to reduce intense forest fires has assumed an urgent priority.

Currently suffering the worst drought in the U.S., New Mexico has emerged as a “natural experiment” in megadrought, a laboratory for understanding drought’s deep history in the region — and what might lay in store in an era of rapid, human-caused warming.

With a highly variable climate, the Southwest boasts perhaps the best-studied megadrought history in the world. It’s the home of dendrology, the science of studying tree-rings, first developed at the University of Arizona. The pronounced seasonality of hot summers followed by cold winters produces well-defined rings, while archaeological fascination with Southwestern cultures — Chaco Canyon, Mesa Verde, and other sites where ancient peoples flourished and disappeared — has supported the collection and study of centuries of tree-ring data. Temperate-zone trees lay down wider rings in wet years, which narrow or vanish during drought. What’s more, rings can be precisely dated, with sets matched against each other, revealing burn scars and patterns of climate, precipitation, drought stress, and tree mortality.

Park Williams, a young bioclimatologist and postdoctoral fellow at Los Alamos National Laboratory, has teamed up with other specialists at the U.S. Geological Survey (USGS) and the University of Arizona to wring new insight from the data set spanning the years 1000 to 2007. Driving recently into the Jemez Mountains near his office, we pass rust-red pines, dead or dying from drought. Later, kneeling next to a freshly cut stump, he points to a ring near the bark. “That thick ring right there is probably 1998,” he says, a wetter El Niño year.

Armed with 13,147 such site-specific cross-sectioned specimens, gathered from more than 300 sites, Williams and his co-authors devised a new “forest drought-stress index,” integrating tree-ring measurements with climatalogical and historical records for a paper published earlier this year in Nature Climate Change. Winter precipitation has long been thought important to tree growth, but another key variable leapt from this fresh examination of the data, related to a warmer, dryer climate: the average vapor pressure deficit during summer and fall, which is driven by temperature. As air grows warmer, its capacity to hold water vapor increases exponentially, which speeds evaporation and sucks more moisture out of trees’ leaves or needles, as well as the soil itself.

If the vapor pressure deficit sucks out enough moisture, it kills trees, and there’s been a lot of that going on. Looking back in time through the tree rings, Williams determined that the current Southwest drought, beginning in 2000, is the fifth most severe since AD 1000, set against similarly devastating megadroughts that have occurred regularly in the region. One struck during the latter 1200s (probably driving people from the region) and another in 1572-1587, a drought that stretched across the continent to Virginia and the Carolinas. Few conifers abundant in the Southwest — including piñon, ponderosa pine, and Douglas fir — survived that latter event, despite lifespans approaching 800 years; those species have since regrown.

The forest drought stress index correlates strongly with these periods, while 20th-century temperature records show a connection between drought and tree mortality associated with huge wildfires and bark-beetle outbreaks, such as the devastating ones of the past two decades. Williams’ study is also supported by satellite fire data from the past few decades, revealing an exponential relationship between drought stress and areas killed by wildfire.

His projections, based on climate forecasts, sparked grim headlines throughout the region: If the climate warms as expected, forests in the Southwest will be suffering regularly from drought stress by 2050 at levels exceeding previous megadroughts. After 2050, he calculates, 80 percent of years will exceed those levels. “The majority of forests in the Southwest probably cannot survive in the temperatures that are projected,” he says.

Making matters worse in the near-term, forests hit by so-called “stand-destroying” wildfires may not recover. During a recent phone interview, Craig Allen, a co-author of the Nature paper and a USGS research ecologist at the Jemez Mountain Field Station near Los Alamos, explains that the catastrophically hot fires seen recently in New Mexico, while a natural result of a century of fire suppression and dense growth during wet periods, create conditions for permanent forest loss through “type conversion.” Basically, high severity fires that burn over a wide area subvert the ability of southwestern conifers to reproduce, a process requiring nearby mother trees to drop their seeds. Ponderosa pines, for example, can’t cast their seed much more than 100 yards, virtually ensuring that large forest gaps will be replaced by shrub and grasslands, with unfortunate consequences for a range of forest services, particularly those provided by delicate watersheds. “These anomalously big patches where every tree is killed create a high risk that they won’t come back as forests,” Allen says.

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