To The Point

by Caren Cowan

On Being Tardy . . . 

There used to be a saying in Cochise County that when the Cowans arrived, you could close the door because no one else was coming. That

wasn’t because the Cowans were so important – it was because they were generally late.

Whenever we went almost anywhere there was always a crisis that had to be dealt with first. Haul a load of water, heifers to be checked, or the absolute best one was that if we were going to a rodeo or a steer show, the lights on the trailer always required an overhaul. Generally that was in the middle of the night and there was not great certainty that they would work for the entire trip.

One of my favorite stories was when Daddy was supposed to be a pallbearer at someone’s last gathering. As he and mother skidded into the parking lot just in time for Daddy to take his place in the procession, Mother took a bit more time. As she encountered the funeral director, she made a comment about Daddy being late to his own funeral. “Not if I have anything to do with it,” he retorted.

I have had the terrible habit of being late for most of my life. Often it was not a little late, but really late. A friend noted the other day that people who were habitually late were generally that way always.

Luckily, and embarrassingly, I had another friend who did a pretty good job of breaking me to lead and be on time. Sometime soon after I went to work for the New Mexico Cattle Growers’ Association (NMCGA), I was called to the New Mexico Department of Agriculture in Las Cruces for a briefing on the new concept of carbon credit trading. As usual, there seemed there was something pressing at the office I needed to do before I started the drive down, so I left about an hour later than I should have.

No big deal I thought, I wasn’t too interested in the subject anyway. I called Jeff Witte’s assistant Yvonne Alexander to tell her that I was running late. I suggested they start the meeting without me and I would catch up when I got there.

That was not what Jeff decided to do. When I walked in, an hour late, there was a room full of people who had been cooling their heels waiting for me for that hour. Totally mortified I sat down and pulled out my knitting as the meeting started. The seat left for me was near the speaker.

I guess I doubly offended him. At the end of his presentation I began asking questions on how the credits would be handled on federal and state trust lands. He looked down at me and said, “so you WERE paying attention.”

While I haven’t managed to work the “15 minutes early or you are late concept” into my scheduling, my arrivals are timed much closer to the beginning of appointments.

The reasons for these stories are twofold. First, for those of you who are habitually late, there is hope for you and I don’t really recommend Mr. Witte’s option for learning your lesson. It would be much less painless if you just started planning better on your own.

But the main reason is to encourage everyone to vote EARLY. This is one election that we cannot afford to miss or let anyone stay home. It is not impossible for there to be a snow or ice storm on Election Day and you’d just be better off to go ahead and vote early.

“Get The Lead Out”

The old phrase used to tell people to hurry up has a new meaning these days according to Emily Miller, a senior editor for the Opinion pages at The Washington Times.

Should President Obama win in November, Miller writes, it’s a certainty he’ll try once again to ban lead ammunition. Just two months after he moved into the White House, the National Park Service suddenly announced it was banning lead bullets from its parks. The blowback from sportsmen was intense, so the agency backed down. Mr. Obama surely will exert “more flexibility” in a second term to accomplish this backdoor assault on the Second Amendment.

Senator Jon Tester (D-MT) introduced a bill to make sure that can’t happen. Just before the Senate adjourned in late September to go campaigning, the body voted 84 to 7 to take up the Sportsmen Act during the November 13 lame-duck session. It’s a priority for a number of pro-hunting groups, including the National Shooting Sports Foundation (NSSF).

“The threat to ban use of traditional ammunition without sound science is the most significant threat facing the firearms and ammunitions industries today,” NSSF senior vice president Larry Keane told The Washington Times. “If the Environmental Protection Agency (EPA) were to ban traditional ammunition using the Toxic Substances Control Act, it would destroy the ammunition industry in the U.S., crater conservation funding and create massive supply shortages for consumers.”

The ban is a priority for radical groups like PETA, the Humane Society and Center for Biological Diversity (CBD) that want legislation to prohibit anything but “nontoxic bullets.” This is mostly an excuse to sue ammo manufacturers out of business. In June, CBD filed suit against the EPA for not addressing the “toxic lead in hunting ammunition that frequently poisons our wildlife.”

Opponents are ridiculing CBD’s “Get the Lead Out” campaign. “The notion that you can get lead out of the environment showed these people should not have passed their high-school chemistry test,” said Mr. Keane. “Lead is in the periodical table. There is no more lead in the environment than there was 100 years ago.”

Don Saba, a research scientist and National Rifle Association board member, said that these groups are deliberately attempting to confuse the public into thinking the lead in bullets is the same as lead paint that is harmful to children.

“The lead that is used in ammunition is metallic lead and is a very inert material that does not dissolve in water and it is not absorbed by plants or animals,” Dr. Saba explained. “There is a tremendous toxicity difference between the highly inert metallic lead used in ammunition and the highly toxic lead compounds used in legacy leaded paints.”

The ammunition demonized by the self-styled environmentalists happens to fund highly successful animal-conservation efforts. The Pittman-Robertson Act of 1937 set up an excise tax, now 11 percent, on ammunition and long guns and 10 percent for handguns. The resulting $7 billion in revenue over the years has gone toward restoring habitats for wild turkey, bald eagle, duck, elk and antelope populations.

America’s ammunition industry works on high volume and thin margins, manufacturing 9 billion cartridges a year, 95 percent of which have lead components. Lead is used in bullets because it is the perfect material — dense, heavy, soft and inexpensive. Asked for an alternative, Winchester Ammunition engineer Mike Stock replied, “We’d use gold if it was cheap enough to make bullets.”

The NSSF estimates a lead ban would result in tens of thousands of jobs lost as prices would necessarily rise 190 percent. Mr. Obama has killed enough jobs in his first term. The last thing our economy needs is another assault on successful businesses.

The Dirty Little Secret . . .

“We, the U.S. Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS) (collectively referred to as the ‘‘Services’’ or ‘‘we’’), propose to revise our regulations pertaining to impact analyses conducted for designations of critical habitat under the Endangered Species Act of 1973, as amended (the Act). These changes are being proposed as directed by the President’s February 28, 2012, memorandum, which directed us to take prompt steps to revise our regulations to provide that the economic analysis be completed and made available for public comment at the time of publication of a proposed rule to designate critical habitat.” —Preamble to FWS–R9–ES–2011–0073, Proposed Federal Rulemaking published Aug. 24, 2012.

If this is all you read about this proposed rules change, you’d think, “OK, no big deal this makes sense. We want the economic impact analysis of Federal rules to be complete—otherwise why bother. We also want to see that complete analysis before the public comment period so we can actually comment on the estimated cost and impact of proposed rules.”

But according to a newly released Stoel Rives analysis of the impact and implications of the proposed critical habitat rules change, the secret is you would be mistaken.

Critical habitat protection has been one of the most controversial and intrusive provisions of the Endangered Species Act (ESA), write Jim Hunt, . The goal of the provision was to avoid doing more harm to endangered species thus giving them an opportunity to sustain themselves. The ESA says Federal agencies may not take actions that destroy or adversely affect critical habitat. There is nothing wrong with this goal, but the way it has been applied has resulted in situations where the designation amounts to a virtual taking of private property for a public purpose.

This critical habitat designation provision also creates opportunity for abuse of discretion if Federal agencies or environmental interveners use it to coerce outcomes that undermine the economics of proposed projects. We often refer to this as NIMBY or other pejoratives, but they are symptoms of a Federal environmental regulatory process that is out of balance. The review of the real implications of this proposed rules change is a good case study in the creeping process of environmental GOTCHA played out by rulemaking.

To balance the coercive potential of critical habitat designation, the Stoel Rives analysis reminds us that the ESA requires Federal agencies to “consider potential economic, national security, and other relevant impacts”. This includes economic impacts to private landowners and developers. And in cases where this balancing of interests finds that there are more economic, national security or other benefits from doing so the Federal Agencies “may exclude an area from critical habitat” if those benefits outweigh the benefits of including it in the designation.

See why this is so contentious?

The case law is littered with conflicting decisions in these matters. And that too creates opportunities for mischief. Here we can even sympathize with Federal bureaucrats trying to write rules that will apply to all when a decision in one Federal court may be at odds with a decision interpreting the same provision differently in another. That is what apparently provoked this proposed rulemaking.

The Ninth Circuit Court of Appeals, the most overturned court in the nation, adopted a “baseline approach” to critical habitat designation which allowed the Federal agencies to conside­r only ‘incremental impacts’ in their economic impact analysis of critical habitat designation. The practical effect of the ruling in the Western states where it was applicable was to enable the agencies to calculate the cost of a rule using minor additional administrative costs rather than the total regulatory burden. The result , of course, was much more critical habitat was found to pass the cost benefit test and many more landowners were suing to stop it in Federal court.

In the Tenth Circuit Court of Appeals the same question was litigated and appealed with the opposite result. The Tenth circuit said the baseline incremental approach used in the Ninth Circuit was unlawful precisely because it ignored the full cost of regulatory burdens in measuring the overall cost and benefits of the critical habitat designation as required by the ESA.

So what? So the proposed rulemaking seeks to adopt the Ninth Circuit opinion allowing this incremental baseline approach and reject the Tenth circuit opinion. If this proposed rule is adopted it surely will be litigated to the DC circuit where Federal rules are appealed and perhaps then onto the U.S. Supreme Court.

You may comment on the proposed rule until October 23, 2012 as follows:

Federal eRulemaking Portal:!home;tab=search.
Search for FWS– R9–ES–2011–0073, which is the docket number for this rulemaking.

U.S. mail or hand delivery: Public Comments Processing, Attn: FWS–R9– ES–2011–0073; Division of Policy and Directives Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax Drive, PDM–2042; Arlington, VA 22203. We will post all comments on