N.M. Federal Lands News

by Frank DuBois

The Federal Land Council News

My column this month includes a government conspiracy against a ranch family, grazing in monuments and a federal virus.

The Other Hage Case

Most are familiar with the Hage case before the Court of Federal Claims.  However, this case is about the antics of the federal land management agencies while Hage was winning in the claims court.

In 2007 the feds filed suit against Hage, citing 44 instances of livestock trespass on BLM and Forest Service land and requesting both damages and an injunction.

The judge found Hage liable for trespass in two instances, and set total damages at $165.88. The judge found Hage innocent on the other trespass charges.  The judge also ruled the denial of Hage’s grazing renewal application was “an abuse of discretion” and a “violation of due process”. The court also said the feds were enjoined from “unreasonably interfering with the ability of Defendants Wayne N. Hage and the Estate of E. Wayne Hage to bring cattle to those water sources and attendant ditches in which these Defendants have vested rights to water their cattle” and that the cattle drinking that water “need not be supervised during ingress onto federal land, while watering, or during egress from federal land” based on Nevada law concerning unfenced land.

It’s an amazing opinion, but there’s more.

The court found that during the trial the feds engaged in the following behaviors: 1. Invited others to apply for grazing permits on allotments where the Hages had previously owned permits 2. Applied to the state engineer for their own stock watering rights with the “purpose of obtaining rights for third parties other than Hage in order to interfere with Hage’s rights” 3. The feds specifically sought to transfer Hage’s water rights to others

4. The feds solicited and granted grazing rights to parties who had no preference under the Taylor Grazing Act in areas where the Hages did have preference

5. The feds sent trespass notices to people who leased or sold cattle to the Hages “in order to pressure other parties not to do business with the Hages, and even to discourage or punish testimony in the present case.”

The court said government officials “entered into a literal, intentional conspiracy to deprive the Hages not only of their permits but also of their vested water rights”, that these actions had “shocked the conscience” of the court, that officials had been found in contempt of court and the matter had been referred to the U.S. Attorney.

Monument grazing

With the recent creation of a National Monument in New Mexico, and the enviros pushing for at least three others in our state, the issue of livestock grazing in National Monuments has come to the forefront. A recent court case caught our attention.

On January 17, 2001 President Clinton issued Proclamation No. 7398, which designated 495,502 acres as the Upper Missouri River Breaks National Monument in Montana. Almost 120,000 acres of that was private land, or land owned by the state or counties.

The proclamation says this about grazing:

“Laws, regulations, and policies followed by the Bureau of Land Management in issuing and administering grazing permits or leases on all lands under its jurisdiction shall continue to apply with regard to the lands in the monument.”

The Bureau of Land Management (BLM) then began its planning process, eventually issuing a programmatic EIS for the monument, and a site specific EA for a large grazing allotment. The Western Watersheds Project (WWP) then sued, challenging both the EIS and the EA

The WWP claimed the BLM had misinterpreted the language in the proclamation in preparing the EIS and had violated the National Environmental Policy Act (NEPA) in the EA because a no grazing alternative had not been considered.

The United States Court of Appeals for the Ninth Circuit issued an opinion about this on June 7 of this year. In summary, the opinion stated the BLM had reasonably interpreted the proclamation in that it required no programmatic changes in grazing and therefore the EIS was in compliance with NEPA. However, the court also ruled the EA did not comply with NEPA because it did not contain a no- or reduced-grazing option. Ranchers in the Rio Grande del Norte National Monument can probably expect to see such an option in any EA on their allotment.

We had hoped this decision would give us some clarity on interpreting the grazing language in these proclamations.  Unfortunately that was not to be. A footnote to the opinion said WWP had provided a draft Resource Management Plan with a different interpretation of the grazing language. The court rejected the document because the proclamation had been issued prior to the BLM providing agency guidance on this issue.

Its concerning to us the BLM would rule one way on the grazing language, and then after issuing guidance to the field they are now interpreting it differently.

To further complicate the issue, when comparing the Proclamation grazing language in the Upper Missouri River Breaks with the grazing language in the Proclamation for the Rio Grande del Norte, I found a clause in the latter that does not appear in the former. That additional language is not in our favor and I’ll have a more complete discussion of that in next month’s column.

Regional Mitigation

If that monument stuff is not enough to tax your brain, then please grab a hold of Regional Mitigation.

Earlier this month the BLM issued an Instruction Memorandum on Regional Mitigation Strategies, Regional Mitigation Planning and Mitigation Implementation, accompanied by a 21-page Draft Manual.

Traditionally the BLM has looked at energy and other issues on a project by project basis. Starting under Secretary Salazar and looking at solar industry projects, the BLM prepared what one author called “a super zoning plan”, with the idea of determining in advance which areas were best for development and which areas had the most potential conflict with other uses. This involved millions of acres.

Now this “look-before-you-leap, landscape-scale approach” is being adopted nationwide by the BLM.

All land owners should take note because the strategy includes “opportunities on both BLM-managed public lands and non-BLM-managed lands (other Federal, Tribal, State, and private lands).”

Yuckies at Yellowstone

The press reports there have been over 150 Park Service workers and several groups of visitors who have become ill at Yellowstone and Grand Teton national parks. The Center for Disease Control confirms they were suffering from a “highly contagious” norovirus in the stomach.

That means you will face two long lines at Yellowstone this summer. First is the orchestrated sequestration line at the gate, and the second is the norovirus line at the toilets.

Till 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).