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

Idaho Rancher Gets a $24,651 Bill for 2012 Livestock Trespass!

Western Watersheds Project’s work to help document ongoing trespass livestock has paid off!

WWP staff (Katie Fite and Ken Cole) and the Bureau of Land Management (BLM) documented a single rancher’s trespass cattle throughout the 2012 season. After receiving three trespass notices for having cattle on several allotments in the Juniper Mountain area of southwestern Owyhee County, an Owyhee County rancher agreed to pay $24,651 in trespass grazing fees and administrative costs.

The trespassing rancher, Jack Payne, is the owner of the C Ranch in Owyhee County and owner of Nevada Livestock Marketing in Fallon, Nevada. The BLM first observed his trespassing livestock on the Trout Springs and Pole Creek allotments on July 20^th, 2012.  Payne did not have a permit to graze cattle on either of these allotments; the Trout Springs allotment had been completely closed to grazing since 2008 after another rancher lost his permit due to repeated willful trespass violations.  Some of Payne’s cattle also remained on the Bull Basin allotment long after the July 15 permit deadline for removal adding to the unauthorized use violations. In total, Payne’s trespass cattle were found on four allotments: Trout Springs, Pole Creek, Cliffs and Bull Basin.

WWP obtained documents about the trespass through a Freedom of Information Act request and there were records of conversations between the BLM and Jack Payne wherein the rancher complained that livestock were difficult to manage on these heavily-forested-with-juniper allotments.  Cattle would often escape detection or quickly disappear into the dense junipers when being rounded up.

This echoes complaints made by Western Watersheds Project. These lands are unsuitable for livestock grazing.  Redband trout streams on the allotments have suffered severe degradation and any recovery made on the Trout Springs allotment was lost with just this one season of trespass.  In addition, there is little livestock forage available after decades of abusive livestock grazing on these landscapes.

Unfortunately, trespass and general lawlessness is a common aspect of livestock grazing in Owyhee County.  Cattle have been observed illegally grazing in the general area for many years by Western Watersheds Project staff but outside political forces have undermined BLM decision-making. We hope that one day livestock grazing will end in this remote, arid and important landscape and be replaced with healthy streams and healthy wildlife habitat.

Ken Cole
Nepa Coordinator

Of cows and climate

One needs only to look at the coffee-table book Welfare Ranching’s full page pictures of muddy streams and packed dirt ground to know that cattle grazing can have a negative impact on rangelands. While its specific effects are harder to pinpoint, climate change, too, affects hydrology, native plants and wildlife. Add climate change and cows together, says a recent study, and you've got the potential for a very stressed landscape. In at least one part of the U.S., the Bureau of Land Management has already begun to incorporate those findings into grazing permits.

On Jan. 28, the BLM’s Owyhee Field Office in southwestern Idaho took the opportunity offered by the renewal of four grazing permits to lower the number of cows allowed on those permits. Specifically, the revised permits cut livestock numbers by one third to one half and limit the amount of time the cattle can be on the BLM land. The grazing cutbacks didn't come about just because the BLM was integrating new science, though. Rather, they are the culmination of an epic legal battle begun by the nonprofit Western Watersheds Project, whose pressure has forced the cutbacks. The group, known for its unwillingness to compromise and staunch opposition to public lands grazing, sued the BLM in 1997 for issuing nearly 70 permits without a thorough consideration of rangeland health. In 2002, a U.S. District Court judge ruled in WWP’s favor.

Because of that ruling, the agency is just now re-evaluating the health of the area, and an environmental analysis of the first four permits found that all of the allotments violated at least two, and sometimes four, of the BLM’s rangeland health standards, including water quality, endangered species habitat and native plant health. More importantly, the analysis determined that livestock were “significant causal factors” in the allotments’ failure to meet standards -- in other words, the cows are to blame. A small paragraph in document also notes that cattle are a stressor that adds to impacts already being wrought by climate change, and cites a paper published in January in Environmental Management that details the relationship between cattle and climate. When deciding how to revise the grazing permits to respond to the environmental assessment's findings, Loretta Chandler, the field manager of the Owyhee Field Office, appeared to consider these findings, although a spokesman for the Idaho state office said the agency still needs more research on how grazing levels react with climate change.


The authors of the study, “Adapting to Climate Change on Western Public Lands:
Addressing the Ecological Effects of Domestic, Wild,and Feral Ungulates,” argue that reducing cattle numbers or eliminating them entirely will lead to the recovery and resilience of the arid sagebrush steppe ecosystem, important in a region stressed by drought, higher temperatures, more fires and insect outbreaks. Over 70 percent of Forest Service and BLM lands have livestock grazing, but despite this, there are fewer efforts to mitigate cattle’s deleterious effect on the landscape than other stressors, they say.
“They invariably talk about fire, forestry, roads, and they never talk about grazing,” says Robert Beschta, an emeritus professor in Oregon State University’s department of forest ecosystems and society and co-author of the study. “That’s the biggest land use on public lands, (and) it’s basically ignored when they talk about resiliency.” Why? Beschta points to internal politics. “Is there an internal agenda by agencies to downplay grazing impacts? I would say yes.”

The BLM’s new Owyhee grazing permits may be a step towards a more holistic consideration of the impact of grazing when combined with climate change. Chandler notes that the revised permits are an opportunity to prioritize ecosystem resilience and resistance to the impacts of climate change through careful livestock management. The grazing alternative she chose, to limit grazing to the summer time and reduce the number of cattle, will mean that “native plant communities…will be better armed to survive such (climatic) changes,” the permit reads.

The consideration of climate seems progressive, and counter to some recent agency history. The BLM certainly does not always acknowledge that cattle, or climate, are stressors. In a 2010 grazing management strategy for Juniper Mountain in eastern Oregon, the agency received a comment asking the BLM to consider how impacts of cattle grazing exacerbate climate-induced stress on the ecosystem. The agency responded by denying that climate change was a “new stress” on ecosystems, and wrote that “climate variability has occurred since the beginning of time and most healthy native ecosystems adapt.”

In November 2012, Public Employees for Environmental Responsibility (PEER) reported that the agency had directed scientists to exclude livestock as a possible factor in changing landscapes. According to the PEER report (which filed a scientific integrity complaint against the agency):

“Launched in 2010 with more than $40 million in stimulus funds, BLM sought to analyze ecological conditions across six “eco-regions” covering the Sagebrush West. There was only one catch: when scientists were assembled BLM managers informed them that there was one “change agent” that would not be studied – the impacts of commercial livestock grazing. BLM managers told stunned scientists the reason for this puzzling exclusion was due to “stakeholders” opposition and fear of litigation, according to documents appended to the PEER complaint.”

To get PEER’s take on the Owyhee permits, I contacted Jeff Ruch, the group’s executive director, and asked him if he’d seen mention of the relationship between climate and cattle in grazing permits before. He admitted he was not familiar enough with permit restrictions to answer that question, but noted climate (and how its effects are, in turn, affected by cattle grazing) wasn’t the deciding factor in reducing livestock numbers. “In both the EA and the permit decision, climate change appeared to be cited as a plus factor, sort of a cherry on top of the regulatory sundae, adding a further justification for pursuing reductions in grazing levels,” he wrote.

As for Beschta, the author of the study cited in the EA, for the BLM to begin to think about this problem at all is a big deal.

To move towards a solution, he says “first of all you need to know you have a problem.”

Emily Guerin is the editorial fellow at High Country News.

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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Hage Forage Right Trial Ends With BLM and U.S. Forest Service Employees Found in Contempt

 FOR IMMEDIATE RELEASE                                                                     Sept. 4, 2012

RENO, NV—Friday, August 31, a weeklong show-cause hearing ended with Chief Federal District Court Judge Robert C. Jones finding Tonopah Bureau of Land Management (BLM) manager Tom Seley and Humboldt-Toiyabe National Forest Service ranger (USFS) Steve Williams in contempt of court. The contempt, including witness intimidation, occurred during the pendency of the five-year-old forage right case, U.S. v. Estate of E. Wayne Hage and Wayne N. Hage. 

            Seley was specifically found having intent to destroy the Hages’ property and business interests. “Mr. Seley can no longer be an administrator in this BLM district. I don’t trust him to be unbiased. Nor can he supervise anybody in this district,” the judge stated in his order from the bench.

            The contempt finding was the result of the USFS and BLM having filed suit against Wayne N. Hage and the Estate of E. Wayne Hage in 2007 but then also seeking alternative remedies while the case was pending in derogation of the court’s jurisdiction. 

            “The problem is Mr. Seley especially, and to a lesser extent, Mr. Williams...had to kill the business of Mr. Hage. They had to stop him in any way possible,” the judge noted as the motive for their contemptuous actions. “My problem was that you were seeking remedy outside this court,” he added.

            The court noted, “You got a random draw of a judge. You submitted to this civil process.” Then, Seley and Williams pursued their own remedies by trying to extort money out of third-party ranchers who had leased cattle to Wayne N. Hage. They issued trespass notices, demands for payments, their own judgments, and in one instance coerced a $15,000 settlement. All of this was done during the time the court had jurisdiction over these issues.

            Counts against Seley and Williams included filing on top of the Hages’ vested and certificated stockwater rights with intent of converting those rights to a new permittee; sending 75 solicitations for 10-year grazing permits in the Ralston allotment aiming to destroy the Hages’ grazing preferences and water rights; issuing temporary permits to third parties, in particular Gary Snow of Fallon, Nev., with the knowledge that Snow’s cattle would drink the waters belonging to the Hage family; and, finally, the assessment of fines, penalties and judgments on third parties whose cattle were under the legal possession of Wayne N. Hage.

            Judge Jones remarked about the July 26 Federal Circuit Court of Appeals’ ruling in the parallel constitutional Fifth Amendment takings case, U.S. v. Hage. The court expressly said the Hages have “an access right” to their waters. He also noted that the court did not overturn any of the Hages’ property rights that the Court of Claims found the Hages to own. Also, the takings that were overturned were overturned on the basis that the claims were not ripe, not because the government was acting correctly.

            The hearing began Monday, August 27, with a cadre of agency heads from Washington, D.C., regional and state offices turning up in Reno to defend their policies and employees in court. After intense questioning by the court, Judge Jones made witness credibility findings in which USFS Region 4 Director Harv Forsgren was found lying to the court, and Nevada head of the USFS, Jeanne Higgins, was not entirely truthful.  After those findings, several other named witnesses did not testify.

            In his bench ruling Friday night, Judge Jones stated: “The most persuasive testimony of anybody was Mr. Forsgren. I asked him has there been a decline in AUMs [animal unit months/livestock numbers] in the West. Then I asked him has there been a decline in the region, or this district. He said he doesn’t know. He was prevaricating. His answer speaks volumes about his intent and his directives to Mr. Williams.” The court noted that anybody who is school age or older knows “the history of the Forest Service in seeking reductions in AUMs and even an elimination of cattle grazing during the last four decades. Not so much with the BLM—they have learned that in the last two decades.”

            In his findings of witness intimidation, Judge Jones noted: “Their threats were not idle.  They threatened one witness’s father’s [grazing] allotment.” The judge referenced testimony wherein Steve Williams delivered trespass notices accompanied by an armed employee. In one instance the armed man snuck up behind one of the witnesses with his hands ready to draw his guns. “Packing a gun shows intent,” the court noted.

            In explaining the findings to Seley and Williams, the court found there was “intent to deprive this court of jurisdiction by intimidation of witnesses and threats against witnesses.” He added, “Where you crossed the line is you took civil action yourself in order to kill the business of Hage.”

            Seley and Williams were held personally liable for damages totaling over $33,000 should the BLM and USFS fail to fund the losses to Hage and third parties. In addition, Judge Jones imposed an injunction wherein the BLM and USFS are prevented from interfering with third-party leasing relationships when the livestock are in the clear operational control of Wayne N. Hage. The judge ordered Hage to reapply for a grazing permit and ordered the federal government to immediately issue permits to the Hages for the winter grazing season on the Ralston allotment.

            The judge said he had already written 100 pages of his final decision from the main trial ending June 6. He indicated his published decision should be forthcoming in early October. Wayne N. Hage represented himself, pro se, and Mark Pollot, a Boise, Idaho, attorney, represented the Estate.

‘Sagebrush rebellion’ case overturned

SAN FRANCISCO — America’s sagebrush rebellion has suffered a major setback far from the western rangeland where a modern battle was joined over grazing rights on public lands. Over the past 21 years, firebrand Nevada rancher Wayne Hage and his survivors waged a legal war against federal land managers who were seeking to restrict cattle grazing on public lands and became a heroic symbol for those who yearned for bygone days and bridled at the growing reach of government. Then in a little noticed decision on July 26, a three-judge panel of the Federal Circuit Court of Appeals in Washington, D.C., overturned Hage’s hard-fought multi-million-dollar legal victories. It was a quiet rebuke to a legal saga that began in 1991 after the government impounded some of Hage’s cattle. The rancher had defied grazing restrictions in Nevada’s Humboldt-Toiyabe National Forest, and refused to pay fines for grazing permit violations. Challenging the government in court was a costly and time-consuming endeavor that Hage threw everything he had at, including the ranch for which he was fighting. With his ranch house stuffed full of legal tomes as he became immersed in the case, the suit-clad, salt-and-pepper-bearded Hage became the epitome of the sagebrush rebel — the ideological forefathers of today’s tea party — and breathed life into a movement that captured the rebel spirit of the Old West. “Hage is a hero in the sagebrush rebellion. He bet the ranch, literally and deliberately, because he believed passionately in this cause,” said Jon Christensen, executive director of Stanford University’s Bill Lane Center for the American West. “The tragedy is that so much intelligence, creative passion and love for the West ... were wasted on such a doomed dead end,” he said. After his cattle were seized, Hage and his wife Jean filed suit, saying the government’s denial of his rights to freely graze on public lands threatened his livelihood. Hage said ranchers like him had worked the land for more than a century, and should be allowed to continue. In 2008, U.S. Claims Court Judge Loren Smith agreed, saying Hage’s rights had been violated, and ordered the government to pay the rancher’s family $4.4 million, a ruling that has now been tossed out. But Margaret Byfield, Hage’s daughter, said from her home in Georgetown, Texas, that the family has until Sept. 10 to file for a rehearing and they plan to do it. “We are not surprised by this decision. Sitting through the appellate court hearings, we could tell which way the judges were headed,” she said. “There was a lack of understanding of western law and how the western lands function.” At issue before the courts was whether private ranchers have a constitutionally protected ownership stake in public lands, and whether federal overseers of those lands — in this case the U.S. Forest Service and BLM — illegally stripped the ranchers of that property. Government land managers, enforcing environmental laws meant to improve conservation and public access to these lands, have curtailed unfettered grazing through issuing permits that regulate the number of cattle allowed in an area. Judge Smith ruled that the government illegally “took” Hage’s rights to graze on public lands by blocking his access to water. Wayne Hage died in 2006; Jean in 1996. His estate was awarded the damages. “If Hage’s case had succeeded, it would have been virtually impossible for public land managers to control private ranchers’ use of western public lands for cattle grazing,” said John Echeverria, a professor of law at Vermont Law School who filed “friend of the court” briefs in opposition to Hage. “This would have made it far more difficult to maintain the public’s lands in a healthy state and make them available for a wide variety of public uses, including hunting, fishing, hiking and other forms of recreation,” Echeverria said. Bureau of Land Management Nevada spokeswoman JoLynn Worley said the office could not comment on the ruling because of a related, ongoing trespassing case involving the Hage family. In the separate but related proceeding, a district court judge in Reno, Nev. on Friday indicated the Hage family and others are not guilty of trespassing on public lands, and that he intends to find federal rangers in contempt for issuing trespass notices while his court was still deciding the case. Even though the long-running legal saga has turned against the ranchers, those who fought alongside Hage said the sagebrush rebellion lives on, albeit with a different tone. “I think the fight’s going to continue, but it’s not a rebellion anymore,” said Fred Kelly Grant, a former federal prosecutor and private property advocate who helped Hage’s family with the case. Grant and Hage’s family now advocates not for “rebellion” but “cooperation,” a theory that the federal government is compelled by law to work more closely with states and counties when revising public lands policy. Hage’s daughter offers $1,500, eight-hour courses on how to implement the coordination strategy, a concept that has become popular with tea partyers and other states’ rights political movements. In the coordination movement, the sagebrush rebellion lives, Grant said. “As long as there are people in the rural West, the battle between those people and those who would have them off the land is going to go on.” link

Appeals court tosses out Hage judgment

By MATEUSZ PERKOWSKI

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.

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Editorial: Ranchers smolder over limits

    As wildfires blackened more than 1 million acres of the West last week, the debate over grazing on public land took on greater urgency and meaning.
    It also provided several faces to the debate. Meet Jeanette Yturriondobeitia. She and her husband, Richard, have a ranch in southeastern Oregon, near the town of Basque, population 10.
    They own the 12-Mile Ranch, which has borne much of the brunt of the 512,000-acre Long Draw wildfire -- the largest in recent Oregon history -- that roared across the region last week. They have lost 130 cattle and ranch structures -- and they almost lost their house.
    "We came back from moving cattle in the middle of the night and found seven pumper trucks lined up defending our haystack and house," she told Capital Press reporter Dan Wheat.
    With that much land -- most of it used for grazing -- blackened, she wonders how they'll get through the rest of the year.
    "Every bit of our winter range and what's left of our summer range is burned," she said.
    The couple is a founding member of the Trout Creek Mountain Working Group, which formed in the 1980s and included other ranchers, state and federal agencies and several environmental groups. Together, they agreed to reduce grazing on federal allotments to allow fish and wildlife habitat to return to health.
    The area had been overgrazed, but in the intervening 30 years the wildlife habitat has returned to health and even the population of rare Lahontan cutthroat trout has more than doubled, to 24,000.
    In light of their success they have been talking with the U.S. Bureau of Land Management, which oversees the federal land in the area, about increasing their grazing. More grazing would not only allow the them and their neighbors to run more cattle, it would maintain the habitat and, just as importantly, reduce the amount of grass that fuels wildfires.
    Rangeland experts say properly managed grazing benefits the land and habitat. State and federal land managers agree, but are constantly harassed by some environmental groups, which cling to the notion that any grazing only spreads weeds and hurts wildlife habitat. They say cheatgrass, which can be spread by livestock, displaces native grasses that naturally resist fire.
    For that and other reasons, they oppose virtually any grazing. Their goal is to convince the government to buy out grazing allotments across the West.
   The problem for the environmental groups is that a lack of grazing could be worse for wildlife than properly managed grazing, just as no logging can be worse for forest ecology than properly managed logging.
    As was proved by the Trout Creek group in Oregon and other similar groups across the West, wildlife habitat, streams and fish populations do thrive alongside grazing.
    The sage grouse is of particular concern to all Westerners, particularly those who ranch. The bird, which the U.S. Fish and Wildlife Service says warrants protection under the Endangered Species Act, lives in 11 Western states and two Canadian provinces. As a "candidate" species for federal protection, it poses a threat to grazing because it lives in sage brush.
    Agencies such as the Fish and Wildlife Service, the Natural Resources Conservation Service and the BLM have formed initiatives and working groups with ranchers to make sure the grouse populations remain healthy.  They know that properly managed grazing will benefit the grouse and its habitat.
    Wildfires also devastate wildlife habitat. Because cattle and sheep eat the grasses that fuel wildfires, more grazing could have reduced the severity of the blazes that scorched vast swaths of prime sage grouse habitat last week in Oregon, southern Idaho and elsewhere.
    Meet Jared Brackett. He is the Idaho Cattle Association's vice president and ranches near Castleford, Idaho, where about 219,000 acres burned in the Kinyon Road fire.
    He told Capital Press reporter Sean Ellis he is "extremely upset, disappointed and frustrated" that extra fuel -- grass that cattle grazing could have reduced -- was allowed to remain in the Jarbidge Resource Management Area, part of which the massive fire blackened.
    "When you're only utilizing 5 to 10 percent of the resource, this is what happens," he said. "We're trying to help this bird out but they keep saying grazing is a threat to it. Well, fire is a greater threat."
    He is correct.
    Resource and rangeland managers know that cattle and wildlife can get along. They also know that ranchers are willing participants in efforts to protect and improve habitat and reduce wildfire dangers.
    But the extreme environmentalists and their lawyers disagree. They want grazing stopped, no matter that it helps the environment and wildlife such as the sage grouse. As long as they can use the deeply flawed Endangered Species Act to stop grazing, they'll do it.
    Maybe those environmental groups should think about filing another lawsuit. Maybe they should sue themselves for damaging the sage grouse's habitat by opposing more grazing.
    Just a thought.

Capital Press

Ben Nelson Goes Cow (Fees) Tipping

When outgoing Sen. Ben Nelson (D-Neb.) announced last month that he was pushing to reduce America's national deficit by reducing "welfare ranching" in America's heartland, so quiet was the political response in Washington that you could practically hear the crickets chirping along the Potomac. Undaunted, Sen. Nelson last Wednesday went one step further, announcing that he has introduced an eminently level-headed "Fair Grazing Fee" bill, designed to require the various agencies of the executive branch to charge market-level grazing fees for private ranchers who are running livestock on public land.
More crickets in Washington. But not on the ranches and farms of the nation's vast ranch lands. And certainly not in Nebraska. There, Sen. Nelson's new initiative is a very big deal for many different reasons. After all, it's not every day when an elected official, in the selfless pursuit of a common good, bucks up against the power of entrenched special interests and ... wait, wait, what's that? Sen. Nelson pitched his plan not just out of pure deficit-minded selflessness but because Republican nominee Deb Fischer, running this fall for the seat he is vacating, is herself a current beneficiary of "welfare ranching?"
Here's how the Omaha World-Herald Leader put it last month: "The family of Republican Senate nominee Deb Fischer leases 11,724 acres of federal land in north-central Nebraska for about $4,700 for seven months -- by some estimates about $110,000 less than the market rate for leasing private land in Cherry County." Combine such a sweetheart deal with a GOP candidate whose campaign so far has focused upon deficit reduction and wasteful Washington spending and, presto! The Democrats have themselves a campaign theme with some measure of traction.
Sen. Nelson puts it another way. It's not a story about Washington picking on the ranching industry, you see; it's about inequality within that industry itself. Sen. Nelson says he isn't just sticking up for the hundreds of millions of Americans who would like to see their public land leased at market rates. He says he is also sticking up for the vast majority of ranchers who for one reason or another do not receive the benefit of federally subsidized ranching fees. Last week, the senator explained it this way to local journalists:

I have offered an Amendment to help pay for the Jobs Bill, an Amendment that will bring fairness to America's ranchers and all taxpayers. My Amendment will require the US Forest Service and the Federal Bureau of Land Management to charge market value to those who graze livestock on public lands. As you probably know, an elite group of ranchers, I call them the 'two-percenters,' they currently receive about $140 million a year in federal subsidies to graze livestock on publicly-owned land. In these hard economic times, taxpayers shouldn't be padding the pocketbooks of the elite two-percent who get a special deal that 98% of ranchers don't.

And here's more from his website:

... The State of Nebraska charges over $20 dollars a head of calf to graze on state land. Why should the federal government charge $1.35?... Let's go through some numbers. All the grazing fees on federal lands add up to about $21 million dollars. But it costs the federal government $140-some million dollars to take care of those lands. In other words, there is a shortfall of $120 million dollars coming from two percent of ranchers. If I'm one of the 98 percent, I'm going to say 'that's not fair." That's why this is a matter of tax fairness.

In this day and age, who could be against "tax fairness"? Certainly not Bob Kerrey, the former Nebraska senator and governor who is running (against Fischer) for Nelson's soon-to-be-empty seat. "I believe the free market should set the prices for grazing on federal land," Kerrey said last month in a press release after Nelson first announced his pitch. "Giving generous subsidies to a small number of ranchers isn't fair to the vast majority of ranchers who don't have this grazing privilege. Further, it isn't fair to the taxpayers who are subsidizing this form of welfare.
What do Fischer and her fellow Republicans think of Sen. Nelson's bright idea? I'll let the Lincoln Journal Star pick up the story from here:

The Nebraska Democratic Party launched a new TV ad campaign Monday accusing Republican Senate nominee Deb Fischer of accepting millions of dollars in "taxpayer subsidies";at the same time, she calls for reduced federal spending. "Think you know Deb Fischer?" the attack ad asks. "Well, behind her rhetoric is a lot of bull. Tell welfare rancher Deb Fischer to cut wasteful spending, not profit from it."
Democrats clearly have decided Fischer's participation in a federal livestock grazing rights program that benefits her own family ranch may be a chink in her conservative, cost-cutting armor they might be able to exploit. Sen. Ben Nelson and Bob Kerrey, her Democratic Senate opponent, already have questioned Fischer's acceptance of what they describe as federal subsidies that result from charging below-market fees for cattle grazing rights on U.S. Forest Service land.
"Ranchers are required to pay for additional maintenance costs and abide by strict federal regulations in exchange for leasing the land," Fischer campaign spokesman Daniel Keylin said. Republican Sen. Mike Johanns, a former U.S. secretary of agriculture, already has said it was misleading to describe the program as a subsidy, Keylin pointed out. Johanns said the lease requires substantial activity by a rancher in return for limited use of the land. Republican state Chairman Mark Fahleson branded the ads an act of desperation.

An act of desperation, perhaps. But that doesn't make Sen. Nelson's plan bad national policy. Indeed, regardless of its local-political overtones, and regardless of the senator's motives in promoting it, making federal grazing fees at least match the market rate is sound and equitable policy that deserves serious consideration on Capitol Hill. The fact is, for the past 75 years, "welfare ranching" has eroded public resources for the benefit of an industry that gladly accepts the federal dole at the same time it is blasting Washington for its largesse.
Just ask the folks at the Center for Biological Diversity, a group dedicated (among other things) to the conservation of public lands. The Center's Public Land Campaigns Director, Taylor McKinnon, quickly praised the Nelson plan. "The grazing subsidy is America's upside-down public-lands policy," McKinnon told me last Friday. "Each year it costs the public hundreds of millions of dollars while enabling public-lands grazing that erodes soil and destroys wildlife habitat. Reform makes perfect economic and environmental sense. It's long overdue."
Overdue -- and clearly not a priority so far for the Obama Administration, which has stubbornly refused to expend any political capital on this issue. Here's what McKinnon had to say about the executive branch's contemporary approach to the problem of "welfare ranching" and its insidious subsidization:

We've both petitioned and sued the Obama Administration seeking a significantly fairer fee, but they resist change. So after years of their skulking and cowering, it's refreshing to see someone with guts enough to tell the truth and demand a discussion about real reform.

"Real reform" can come from many different places and for many different reasons. Maybe Sen Nelson is, as McKinnon suggests, just being gutsy for pitching his plan now. Maybe he is, as Nebraska's Republicans contend, just being ballsy on his way out. Either way, and whomever wins or loses the Senate race for his seat in Nebraska, fair grazing fees and the end of "welfare ranching" is a good idea whose time, finally, has come. As the senator himself put it, "$1.35 per cow is too darn low." Darn right it is.

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