by Caren Cowan
Along with being time consuming, there is never a dull moment in the governmental arena and the protection of private property rights. We are completing July, which one might think would be a slow time for most, especially those working for government — giving the rest of us a break. Not so much.
We talked at length last month about the devastating news from the New Mexico Court of Appeals declaring the state’s agricultural workers compensation exemption unconstitutional. We can report that a Writ of Certiorari has been filed by affected parties with New Mexico’s Supreme Court to review both the ruling on constitutionality and on the retroactivity of the decision back to March 20, 2012. The Supreme Court may take up the entire ruling, portions of the ruling, or not take up any of it. They have 30 days to make a decision, so there should be word by late August on what happens next.
As ag trade groups continue to look at the situation and come up with potential solutions, there seems to be only one certainty. If you employ three or more employees, you better be talking to your insurance agent and get coverage immediately. Information from the Workers Compensation Administration is providing great uncertainty as to how an employee is defined and we will continue to try and make sense of that, but it is in your best interest to get coverage now if you have any assets at all.
As if dealing with workers comp wasn’t enough, about 10 days into July we learned that the Interstate Stream Commission (ISC) had filed an application for water rights for “non-consumptive use of all the unappropriated water in the Canadian River between Ute Dam and the New Mexico-Texas state line, including water flowing from the Revuelto Creek and other tributaries to the Canadian River, including without limitation flood flows, surface runoff, seepage, springs, seep and other inflows to the Canadian River channel.”
The deadline for protest was July 13. Turns out that the application had been advertised only in the Tucumcari weekly newspaper once.
The advertised purpose of use for the water was pursuant to the Strategic Water Reserve, NMSA 1978, Section 72-14-3.3. “More specifically the uses include but are not limited to (1) compliance with the Endangered Species Act, including implementation of the Arkansas River Shiner (Notropis girardi) Management Plan for the Canadian River from U.S. Highway 54 at Logan, New Mexico to Lake Meredith, Texas (June 2005); (2) more generally, the protection of threatened and endangered species and the protection and restoration of habitat of such species, including mitigation measures; and (3) as may be necessary, compliance with the Canadian River Interstate Compact and associated court decrees.”
If that doesn’t make the hair stand up on the back of our neck we’re not sure what will. But it gets a little worse. When we called the Office of the State Engineer (OSE) in Santa Fe, they had no idea what we were talking about. We eventually learned that the notice had come out of the Cimarron office.
The New Mexico Cattle Growers’ Association (NMCGA), the New Mexico Wool Growers, Inc. (NMWGI) and the New Mexico Federal Lands Council, the Quay Country Farm & Livestock Bureau all filed a protest — as did the counties of Quay, Colfax, Mora, Luna and Catron and a few other individuals. The precedent of such a water grab is concerning to the entire state as evidenced by these county protests.
As rural concerns were made know to the ISC, elected officials and others, ISC staff called a bit perturbed and wanting to know what the big deal was. The application was in pursuit of fulfilling the Arkansas Shiner management plan that NMCGA had participated in development of in 2005. I can assure you that NMCGA never agreed to the application of all of the unappropriated water in anything much less for non-consumptive use.
The ISC staff story was that if this application was not granted — it had already been denied once — that the U.S. Fish & Wildlife Service (FWS) could come in designate critical habitat and fence livestock off streams with 300 yard buffer zones. Given that most of the affected lands are private or State Trust Lands, that is an interesting scenario.
As the conversation progressed, it eventually was admitted that what the ICS really wants/needs is the seepage from the Ute Dam, which flows into the Canadian down to the Texas border. Why then would the ISC need “water flowing from the Revuelto Creek and other tributaries to the Canadian River, including without limitation flood flows, surface runoff, seepage, springs, seep and other inflows to the Canadian River channel?”
The answer to the question was “that is how language is written.” I freely admit that I am not a lawyer (but I do live in New Mexico) and I haven’t stayed at a Holiday Inn lately, but REALLY?
After some additional pressure it appears that the application is indeed too broad and work will be done to narrow the scope. Additional parties have been allowed to file protests, including the New Mexico State Land Office (thank you very much!) There will also be a public meeting in Tucumcari in the near future on the issue. Stay tuned for the particulars.
Just Piling On!
In late July on a Friday after 2 p.m. an email hit the inbox entitled “State Wildlife Action Plan (SWAP) meetings scheduled.” You may remember that in 2005 the FWS changed how funds were doled out to state wildlife management agencies. Each state was required to submit a Comprehensive Wildlife Conservation Strategy (CWCS). New Mexico’s was a mere 681 pages taking in 452 “species of concern.”
What this really meant was these species that weren’t receiving conservation funding from some other source. Deer, bears and mountain lions were all on the 2005 list. FWS funding of about $14 million since 2002, was used on 55 grants for 94 projects including the purchase of private ranch land.
The only thing worse than grazing was energy exploration and production according to the 2005 Strategy. Although there was a good fight put up, the 2005 Game Commission endorsed the “planning document” and it was shipped off to Washington, D.C. and money has been sent back to New Mexico for the past 10 years.
At that time, and the same story is being told today, is that this is only a “planning document,” it has no force of law or regulatory power. We didn’t believe it in 2005 and many of the worst fears are coming about now. One can only imagine how much worse it can get.
True, the New Mexico Department of Game & Fish (NMDGF) doesn’t exercise power of any kind with the strategy other than funding projects. However, federal land and resource management agencies must “consider” the SWAP. In some parts of the state, that means you cannot clean out a stock pond (those are dirt tanks in Arizona), repair a road or even build a fence during times when a species of concern might be disturbed. Sometimes that is for the season(s) that are the only time that kind of work can be done. Both the Bureau of Land Management and the U.S. Forest Service have language about deferring to the SWAP in their “planning documents.”
Fast forward to the email message received on July 24 about meetings. The name of the Strategy morphed into the State Wildlife Action Plan (SWAP). The message notified the world that public meetings would be held on the SWAP the week of July 27 through 31, with the first meeting to be held on July 28 in Albuquerque. Less than four days notice doesn’t hardly seem to be in the spirit of getting a large group of the public to attend.
Nonetheless, NMCGA showed up at the meeting along with three others folks who came as a result of NMCGA’s notification, four other members of the public, a representative of the State Land Office and six or seven employees of the NMDGF. Attendance was even less at the Las Cruces meeting, with only one person there who wasn’t involved in working on the plan… and he worked for the New Mexico Department of Agriculture (thank you very much!).
The gist of the meetings was a slide presentation back-grounding the process along with several slides outlining the process prescribed by the FWS. Bottom line, the document is due in Washington, D.C by October 1, 2015. The Game Commission heard a presentation at their June 2015 meeting and will not formally review the document again before it is shipped off.
The FWS want the focus on climate change, so the SWAP will focus on water and aquatic environments. The FWS also requires the use of International Union of Conservation for Nature (IUCN) threats and mitigation.
Turn out the only thing worse for species, according to the IUCN, than agriculture and aquaculture is residential and commercial development. Number three is energy production and mining followed by transportation. There are six others to round out the 10. In short, the IUCN is pitting animals against people.
In terms of mitigation, there is also a list. While some of the top points are concerning, like land use management, there is one near the bottom that is alarming. It is “compliance.” When asked what that meant, the meeting moderator informed us that this really meant law enforcement. But there is nothing in this plan that has the force of law. Yeah, right.
There seemed to be some good news in the fact that 70 species were removed from the list, including bear and deer. However 73 species were added for a new grand total of 455.
Even more alarming is that the only way to participate in the process at this time is via computer. The documents are currently only available online at: www.wildlife.state.nm.us/conservation/state-wildlife-action-plan/
The moderator agreed that if you didn’t have a computer, you are pretty much SOL on participating. He did note that you could go to a library… and there are lots of libraries in Albuquerque.
In fairness, the leadership at the NMDGF is willing to work on other ways for people to learn about the process and become involved. We are working on ways for that to happen.
The deadline for commenting on this document is August 24, 2015, but the NMDGF will continue to receive comments. If they don’t arrive in time to be included in the SWAP, they can used during any reviews that may take place during the next 10 years, or for the 2015 review, which ever comes first.
NMCGA, the New Mexico Federal Lands Council, and many others are working on comments and working with the NMDGF to see how the SWAP can be altered so as not to aim at directly at the natural resource groups as the scourge of the Earth.
If you have a computer, please go look at the draft SWAP and make comments. Right now the draft is at about 200 pages. It is going to take lots of eyes to identify all the issues.
Just When You Think…
Things cannot get any dumber…we get hit with more silliness. The options to talk about in vein are endless so bear with me.
There has been great debate within national beef community for and against country of origin labeling (COOL) for years. The “for’s” got language in the 2008 Farm Bill to mandate labeling. That resulted in suits being filed with the World Trade Organization (WTO).
The issue has been ruled upon by the WTO and the United States is now at risk of retaliatory tariffs on beef as well as other products from Mexico and Canada. To avoid this retaliation, Congress is fast-tracking legislation to change the law on COOL to remove meat.
The next thing you know, the U.S. Department of Agriculture (USDA) announces that our country will begin receiving fresh beef from regions of Brazil and Argentina. The entire beef community is up in arms. These countries are not free of Foot & Mouth Disease (FMD) although regions within them are.
But let’s be honest, aren’t there concerns beyond animal health and the safety of the nation’s food supply? What will this do to the beef market? With record high beef prices, many ranchers and their families are just healing up from drought, fire and catastrophic winter storms. Others are now being hit with floods and tornados. Those in the West have the additional burden of having their herds reduced or eliminated due to regulatory oppression and liberal courts.
The price of beef is high because there is strong demand with a low supply. Some experts think it will take another five years with at least average rainfall for the cow herd to rebuild, which is necessary for prices to go down. With fresh beef coming in from foreign countries, it may not take that long to see a shift in prices.
All of this is taking place in a society that is ever demanding more information on where its’ food comes from and how it is raised. Go figure.