N.M. Federal Lands News

by Frank DuBois

The Federal Land Council News 

My column this month is about courts & Forest Service mismanagement

Court Overturns Hage Case

All who believe in property rights suffered a big loss when the 9th Circuit Court of Appeals recently ruled against the Hage family.

You will recall the Federal Court of Claims ruled the government had committed both regulatory and physical takings of the Hage’s water rights, and that they were entitled to compensation for range improvements (fences, roads and improvements to springs and wells). After applying interest, the total award was $14.2 million. The three judge panel basically overturned all of the award. Margaret Byfield, daughter of Wayne & June Hage, said, “The Appeals Court decision reads very similar to the government’s briefs filed in the case.” Byfield, who is Executive Director of American Stewards, also said, “Where the lower court very carefully examined the facts and went to great effort to understand not only the law, but how the western grazing lands function, the Appeals Court deferred to the government’s position. It is very unfortunate that the facts determined by the lower court, as well as, its ruling were so easily and eagerly dismissed.” American Stewards says this ruling “opens the door for the federal government to fence off any private citizen’s water right that resides on the federal lands and take whatever they want without paying compensation.” The Hage family has until September 10 to decide if they’ll ask the entire 9th Circuit for a review or rehearing of the case.

Groups file suit against Forest Service

Thirteen rancher and logging groups have filed suit against the Forest Service planning rule, saying the rule prioritizes “ecologic sustainability” over all other uses. The rule requires the Forest Service to “maintain a viable population of each species of conservation concern within the plan area.” The plaintiffs say the rule emphasizes sustainability, preservation and even “spiritual values” over multiple use, which violates the Federal Land Policy and Management Act and the Multiple Use Sustained Yield Act. The groups are asking the federal judge to overturn the planning rule and send it back to the agency for reconsideration.

Heinrich & Lujan Oppose Healthy Forest Legislation

With over 900 fires so far in the West, the politicians are starting to respond.

Rep. Paul Gosar (R-Az) has introduced The Catastrophic Wildfire Prevention Act of 1912, saying “It is clear that the process of planning, studying, consulting, litigating, appealing, and collaborating are failing us and our forests.” According to Gosar, his bill would authorize the Forest Service and Department of Interior to implement wildfire prevention projects, including timber harvests and livestock grazing, in at-risk forests and streamline the review process, improve local coordination, eliminate duplication and set firm time frames to bring more accountability to the process. The House Natural Resources Committee has held a hearing on the bill, which has 33 cosponsors including Steve Pearce, and a companion bill has been introduced in the Senate.

Rep. Scott Tipton (R-Colo) has introduced The Healthy Forest Management Act of 1912. This bill authorizes a state governor or the Secretary of Agriculture (USDA), with respect the National Forest System, or of the Interior, with respect to public lands, to designate high-risk areas of the national forests and public lands in the state for purposes of addressing: (1) deteriorating forest health conditions due to the bark beetle epidemic or drought, with the resulting imminent risk of devastating wildfires; and (2) the future risk of insect infestations or disease outbreaks through preventative treatments to improve forest health conditions. The bill also allows a governor or the Secretary, upon designation of a high-risk area, to provide for the development of proposed emergency hazardous fuels reduction projects for the area. The only problem with the bill is it exempts wilderness areas and national monuments.

A hearing has been held and the committee has passed the bill for consideration by the full House. The two New Mexico reps who sit on the committee, Heinrich & Lujan, sided with the enviros and voted against the bill.

On the administrative front, the Forest Service is changing policy to allow night flights to fight forest fires. In this case it’s to use helicopters in southern California. Senator Dianne Feinstein (D-Ca.) says “This is long overdue but a welcome policy change by the Forest Service,” and “Attacking fires from the air at night can bolster firefighting efforts because temperatures are cooler, humidity is higher and Santa Ana winds die down.”

There’s just one problem: the policy doesn’t take effect until next year. In the meantime, the Forest Service will spend $2 million to train staff and purchase night vision goggles. It takes a year to change policy, but boy they can spend that money right now.

Az. Game Commission gets it

The Arizona Game and Fish Commission has voted to oppose the proposed Grand Canyon Watershed National Monument, saying the designation “could impact public access, recreation, grazing, and the ability of the commission to manage wildlife.” While the commission’s primary concerns were “restrictions on proactive wildlife management” they also noted the loss of livestock grazing in the monument “can cause significant loss of water availability for wildlife.”

These guys get it. The question now is will the Martinez administration get it.

Forest Service to the rescue?

The Obama administration has recently announced several programs to assist the livestock industry during the drought. Among those announced by Secretary of Interior Salazar and Secretary of Agriculture Vilsack was the following: USDA is working with the Department of the Interior to provide flexibility in grazing Forest Service and Bureau of Land Management lands. Programs include refunds to lessees unable to use their allotments for grazing because of drought or fires, greater flexibility in grazing schedules and management and expanded access to additional federal lands.

So will the Forest Service allow this “expanded access” to include vacant allotments? No way says Charlie Richmond, director of rangeland management. Why? Because the allotments “haven’t been through a NEPA analysis or have an updated plan.” Besides, Richmond says these allotments “are vacant for a reason.” Obama can revise other policy during an emergency such as the current drought, just not Forest Service policy. Private CRP lands can be opened for grazing, but not federal lands. Flexibility and expanded access can occur on private land, but those two concepts are foreign to the federales. Seems to me we should find out how many vacant allotments there are on FS and BLM lands and find a way to put them to productive use.

Until next time, be a nuisance to the devil and don’t forget to check that cinch.

Frank DuBois was the NM Secretary of Agriculture from 1988 to 2003, is the author of a blog: The Westerner (www.thewesterner.blogspot.com) and is the founder of The DuBois Rodeo Scholarship (www.nmsu.edu/~duboisrodeo/).