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.

Monuments & Grazing

Last month I wrote about a case involving livestock grazing on the Upper Missouri River Breaks National Monument in Montana. The Western Watersheds Project had sued the BLM claiming the agency had misread the Presidential Proclamation with respect to livestock grazing in the national monument.  In summary, the 9th Circuit ruled 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.

Now let’s look at the grazing language in President Clinton’s proclamation designating the Upper Missouri River Breaks National Monument:

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.

Then let’s compare that with the grazing language in President Obama’s proclamation designating the Rio Grande del Norte National Monument in New Mexico:

Laws, regulations, and policies followed by the BLM in issuing and administering grazing permits or leases on lands under its jurisdiction shall continue to apply with regard to the lands in the monument, consistent with the purposes of this proclamation.

Notice the new language which has been underlined. I call this consistency language, and it is the language which relegates ranchers to second class citizens.

Why? Because livestock grazing is not one of the purposes of the proclamation.

Recall that Representative Ben Ray Lujan had introduced H.R. 1241, the Rio Grande del Norte National Monument Establishment Act. On January 21, 2012, the Presidents of four New Mexico livestock organizations signed a letter to Rep. Lujan which stated in part:

The resources identified for protection in Sec. 3 are cultural, traditional, archaeological, natural, ecological, geological, historical, wildlife, educational, recreational, and scenic. Livestock grazing is notably absent. When combined with the consistency language in the grazing provision (grazing must be “consistent with the purposes described in subsection (b)”), livestock grazing is put at a distinct disadvantage.

Whenever the agency seeks to “conserve, protect and enhance” any of the eleven uses listed and there is a potential conflict with a grazing practice, grazing will be either diminished or eliminated. If a current ranching practice is determined to be in conflict, it will have to be discontinued. If a rancher proposes a range improvement project or any other new activity which is determined to be in conflict, it will be disallowed. The harmful effects of this language are self-evident and we propose the following options as a remedy:

• List livestock grazing in the purposes section, or
• Remove the consistency language

You will note that President Obama chose the Lujan language rather than the Clinton language on grazing. That means livestock grazing is not on an equal footing with the other uses of the Rio Grande del Norte National Monument and will suffer the consequences.

Some may say “We’ll get a future President to revoke this harmful proclamation.” Sorry, the answer is he or she can’t take such action. The U.S. Attorney General issued an opinion in 1933 stating the Antiquities Act authorizes the President to proclaim a national monument, but nothing in the Act authorized him to revoke such a proclamation. Once the President issues the proclamation his authority is “exhausted.”

Well then, can there be a legislative fix?  The answer is yes. Congress may revoke or amend the proclamation as they see fit, and it just so happens there may be a legislative vehicle to accomplish this. Rep. Ben Ray Lujan has introduced H.R. 560 which designates the Cerro Del Yuta Wilderness and Rio San Antonio Wilderness (companion legislation has been introduced in the Senate by Udall and Heinrich). I’m not sure of the delegation’s future plans but this legislation could be revised to include an amendment to the proclamation to remove the consistency language.

All of this should tell us these various land designations should go through Congress, with the appropriate debate and opportunity for comment, rather than by executive fiat in the dark of night.

Endangered Snakes

The Fish & Wildlife Service has targeted more than 400,000 acres in New Mexico and Arizona as critical habitat for two endangered gartersnakes: the northern Mexico gartersnake and the narrow-headed gartersnake. The designation includes over 900 miles of streambeds for the northern Mexico gartersnake and 1500 miles for the narrow-headed gartersnake.

Permittees should take note that the FWS stated in their Federal Register announcement, “We found numerous effects of livestock grazing that have resulted in the historical degradation of riparian and aquatic communities that have likely affected northern Mexican and narrow-headed gartersnakes.”

However, it turns out that stock tanks are prime habitat for the northern Mexican gartersnake, so the FWS has made an exception for stock tanks, saying in those areas a producer may “harass, harm or kill a gartersnake during normal use, operation and maintenance of their livestock tanks.”

There is no such “exception” for the narrow-headed gartersnakes.

Moonbeams

Two U.S. lawmakers have introduced legislation that would establish a national park on the moon. That’s right, a national park on the moon! The bill would protect artifacts left on the moon’s surface by the Apollo missions between 1969 and 1972. “The Apollo Lunar Landing Legacy Act will ensure that the scientific data and cultural significance of the Apollo artifacts remains unharmed by future lunar landings,” said Maryland Congresswoman Donna Edwards, who introduced the bill along with Texas Congresswoman Eddie Bernice Johnson.

There’s just one problem. A 1967 U.N. treaty says, “Outer space, including the moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means.”

But little old things like a treaty or the Constitution has never stopped Congress before, now has it?

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 ).

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).