N.M. Federal Lands News

by Frank DuBois

The Federal Land Council News

My column this month covers reform of the ESA; the EPA and privacy; and Michelle O, the military and school lunch.


Is the Endangered Species Act (ESA) ripe for some reasonable reform?

The ESA was passed four decades ago and hasn’t been renewed by Congress since 1988. Under its authority over 1,500 species and subspecies have been listed.  Unfortunately there has only been a two percent recovery rate, which doesn’t say much for the effectiveness of the Act.

Furthermore, any objective observer will admit the ESA has become a litigation-driven monstrosity. The Department of Justice reports that more than 500 ESA-related lawsuits were filed or opened against federal agencies since 2009, and more than $21 million has been awarded in taxpayer funded attorneys’ fees to environmental lawyers through the Judgment Fund and the Equal Access to Justice Act.  For federal fiscal years 2009-2012, concerning cases in Region 2 of the Fish & Wildlife Service (which includes New Mexico), environmental groups received $2.5 million in attorneys’ fees.  The championship for raiding the federal treasury during this time period, however, goes to Region 8 (Nevada & California) where environmental groups received $7.2 million.

Which environmental groups are filing all these lawsuits? You can probably guess, but here is a list of the top five and the number of cases filed during the time period under consideration:

1) Center for Biological Diversity – 117

2) WildEarth Guardians – 55

3) Sierra Club – 30

4) Defenders of Wildlife – 29

5) Western Watersheds Project – 21

Adding urgency to all this is the so-called 2011 “mega-settlement” negotiated behind closed doors by the Department of Interior and the Center for Biological Diversity/WildEarth Guardians, which may result in an additional 799 species being listed as threatened or endangered.  In the year following the settlement the U.S. Fish & Wildlife Service listed 107 more species. Most recently has been the listing of the meadow jumping mouse which is wreaking havoc on livestock grazing across Forest Service lands in New Mexico, Arizona and Colorado.

Then there is the transparency issue.  The ESA requires listings to be based on the “best available scientific and commercial data” but in many instances the public is denied access to this data. Doc Hastings, Chairman of the House Committee on Natural Resources, has stated, “It is troubling that hundreds of sweeping listing decisions by the Fish and Wildlife Service and the National Marine Fisheries Service cite unpublished studies, professional opinions, and other sources that are inaccessible to the public yet this data would be used to regulate the very people who don’t have access to this information. This secrecy goes against the grain of good science and transparency.”

Not only is the ESA ripe for reform, its actually rotting on the vine, and in response the U.S. House of Representatives has just passed H.R. 4315, the Endangered Species Transparency and Reasonableness Act.

This is no huge reform of the ESA, but is an attempt to make the Act’s implementation more reasonable for humans and more effective for wildlife and plants.  According to a release by the House Natural Resources Committee, H.R. 4315 would specifically:

n Require data used by federal agencies for ESA listing decisions to be made publicly available and accessible through the Internet, while respecting state data privacy laws and private property.

n Require the federal government to disclose to affected states data used prior to an ESA listing decision and it would require the “best available scientific and commercial data” used by the federal government to incorporate data provided by states, tribes, and local county governments.

n Require the U.S. Fish and Wildlife Service to track, report to Congress, and make available online the federal taxpayer funds used to respond to ESA lawsuits, the number of employees dedicated to ESA litigation, and attorneys’ fees awarded in the course of ESA litigation and settlement agreements.

n Prioritize species protection and protect taxpayer dollars by placing reasonable caps on attorneys’ fees to make the ESA consistent with existing federal law. For example, the federal government limits the prevailing attorneys’ fees to $125 per hour in most circumstances, including federal suits involving veterans, Social Security, and disability. But under the ESA, attorneys are being awarded huge sums, in many cases, at a rate as much as $600 per hour.

When an environmental lawyer is awarded four times as much for defending jumping mice and long-eared bats as other attorneys are awarded for defending our veterans and the handicapped, I’d say its way past time for “reform”. The House of Representatives agreed and passed these simple reforms on July 29. Some apparently didn’t agree, as New Mexico rep’s Ben Ray Lujan and Michelle Lujan Grisham voted against the bill.


The EPA stands for an Ever Present Attack on liberty.

Recall how hard it is to get the data on endangered species. Well that’s certainly not the case if you are an environmental group and request data on farmers and ranchers. Many folks were surprised last year when the Environmental Protection Agency, in response to a Freedom of Information Act request, publicly released to three environmental groups a huge database of personal information about thousands of livestock producers and their families in 29 states. What kind of information was released? The database included the names of the producers and other family members, home addresses, GPS coordinates, telephone numbers and emails. How would you like HSUS, PETA, ADF or some other agriterrorist group to have that kind of info on your property and family?

Thankfully, the American Farm Bureau Federation and others have filed suit to stop the EPA from future releases of this type. We’ll keep a close watch on that.

Michelle, the military, and war

Politico reports that Mission: Readiness, a group of nearly 500 former military leaders, is planning to “storm the Hill”and “bring out the big guns for the kids” when Congress comes back to town in an attempt to save Michelle Obama’s increasingly unpopular changes to the National School Lunch Program. The military brass says the obesity epidemic is seen as a “threat to national security.”

Now we have a War on Obesity? Attention Mr. Generals: Do not deploy. This will go the same way as the War on Poverty and the War on Drugs. Besides, one educational group points out that based on a 180-day school year, a school lunch only amounts to 15 percent of a child’s meals.  Better to aim your “big guns” at adequately funding P.E. programs and forget about this silly, sissified, anti-meat program. Besides, do we really want a bunch of tofu toughies running the military?

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).