by Caren Cowan
The Dead Body Principle & other euphemisms . . .
The saga continues with the Outstanding National Resource Waters (ONRW) issue we have been fighting for more than five years. To recap, the initial proposal was made public in early 2009. The Water Quality Control Commission (WQCC) took the matter up in early 2010 and held hearings in the fall of that year, issuing a final decision before the end of the year.
In 2011 the New Mexico Cattle Growers’ Association (NMCGA), who was a party to the case along with several members, appealed the decision administratively to the New Mexico Court of Appeals and asked the WQCC to reconsider its decision in the matter. The Commission chose not to reconsider. The administrative appeal sat in the Court of Appeals until early 2013.
At that point the Appeals Court ruled that NMCGA had no standing for an appeal without even looking at the procedural complaints the appeal was based upon. The Court found that because NMCGA could prove no direct harm, there was no standing.
This isn’t the first time that NMCGA or many, many others have faced this issue. Here’s where the dead body comes in. Because NMCGA couldn’t produce someone who had been harmed by this proposed regulation, although such harm is inevitable, government at all levels is allowed to proceed with regulations and programs that sentence natural resource producers to sheer ruin. I say natural resource producers because that is the only area I am familiar with. I would guess that others are faced with the same death sentence.
This seems to me to be a much higher standard than is required by the criminal court system. There, people are convicted of murders in the absence of a dead body. Circumstances can be enough for a conviction.
Not so when dealing with federal and state regulations and programs. Unless you can produce someone who has been put out of business, driven to bankruptcy or some other dire consequence – a dead body – government agents are allowed to proceed.
The point that we cannot seem to bring to light to is that if we wait until there is harm – a dead body – there is no way to resuscitate them. Livestock is not a stackable commodity. When a regulation puts a rancher in a corner, his only choice is to sell the cows. While there may be other cows to buy, they are not the cows that contain the genetics and the environment knowledge to be able to best utilize that rancher’s pastures.
With the short supply of cattle in the United States today, there are not a lot of cattle on the market and the financial ability to be able to buy cows may also be gone.
Never willing to give up, the NMCGA appealed the Court of Appeals decision to the New Mexico Supreme Court. That hearing was held in late September. The jury, in this case five members of the Supreme Court, is still on what the final outcome will be.
At the hearing the Court was equally hard on both the NMCGA attorney and the three attorneys who argued on the side of the WQCC. Two of those attorneys were funded directly by your tax dollars. The third, representing the WildEarth Guardians (WEG) and several other groups were indirectly funded by your tax dollars. Thankfully in the case of the WEG, it is only your federal dollars that are in play. The state generally does not pay the “sue and settle” fees that federal agencies seem to dole out so regularly.
It is the contention of the New Mexico Attorney General’s Office, representing the Environment Department, the New Mexico Department of Game & Fish and the Energy, Minerals & Natural Resources Department, that there should be no avenue of appeal if a state agency abuses process – and thus the rights of the public.
The WEG followed suit, asserting that NMCGA had lost in the rulemaking process and that was that. Never mind that the Court of Appeals ruled that they had no standing to intervene in the case. That issue they took to the Supreme Court and were granted the right of intervention immediately. When asked if they had the right to appeal on process, the answer was that there was no need for that. They won.
The Supreme Court was troubled by the fact that there are no dead bodies to demonstrate. Further, without the details of the entire process, they appeared to agree with the WEG that NMCGA had a victory because there was language in the final rule exempting grazing and other pre-rule activities.
On the surface that does look like we might have won. However, that is similar to the language that is placed in most wilderness designation bills. It might make you feel good for a minute, but then look at how many cattle continue to graze in wilderness areas. Not many – because you are not allowed to maintain your improvements, or endangered species are identified that prohibit use, or the lack of management allows a catastrophic fire to destroy everything.
Furthermore, the ONRW designation in question is not only sweeping, but turns to the U.S. Forest Service to manage grazing through “best management practices.” How well is that working out for ranchers in New Mexico and the West?
NMCGA’s participation in this process hasn’t been with our errors and mis-steps on our part. The legal representation in the hearing process left something to be desired. Our knowledge on participation has grown exponentially. To say that this has been a trial by fire is an understatement.
A huge fallacy is that rule-making before the WQCC is a “public” process. There is absolutely no way that a member of the “public” has any role at all. If you are not represented by an attorney, and a darn good one, you may as well save your gas money and stay home.
It is pretty amazing to me that I can summarize the blood, sweat and tears by numerous people in just this many words. The hearings in 2011 lasted about eight days with several NMCGA members and others from across the state in attendance every day. I have threatened to take the transcripts from those many days to the Hospitality Suite at Joint Stockmen’s Convention and assign parts to folks to reenact. We might have something that could go on the road to help refill the Litigation Committee coffers.
But the story is not yet complete. We await the decision of the Supreme Court on whether or not NMCGA has standing. That decision will dictate whether we head back to the Court of Appeals to continue the fight or prepare for the dead bodies.
The other euphemism
NMCGA was honored to be invited to an appreciation reception for supporters of the Roadrunner Food Bank last month. All of New Mexico agriculture has been supporting the Food Bank more strongly than ever in the past couple of years.
Of course the event featured a few speakers, including Governor Susana Martinez. While all were enlightening, the one that struck me hardest were the comments of Dr. Eugene Sun, MD, MBA, Chairman of the Board of Directors for the Food Bank.
He noted that when his children are hungry, they don’t say, “Mom, I am food insecure, what’s for dinner?” They are hungry and they say so.
We have become so bound by correct speech in this country that we cannot say what we mean and communication is difficult if not impossible. Instead of talking about hunger we hear about food insecurity, food deserts or food islands. Why can’t we just say what we mean?
We have been told that more than 25 percent of the children in New Mexico go to bed hungry. There are similar scary numbers for the elderly and those who live on fixed incomes.
But there seems to be confusion about even that. During New Mexico Hunger Month as proclaimed by the Governor, the Secretary of Health issued a statement that admittedly was ill worded saying that hunger isn’t the problem, but nutrition is.
Again, aren’t we just arguing about semantics? The end result is that kids and others are hungry.
Why cannot we just say what we mean and mean what we say?
The moral of the story is that there are hungry people in New Mexico and we need to support the Roadrunner Food Bank and other such efforts to put a stop to it.
Shutdown.
As the war of words in the media regarding the government shut down began the President took to the airways to state his position on the issue. There were a few words at the beginning of the speech that stopped me.
He said, “Tourists will find every one of America’s national parks and monuments, from Yosemite to the Smithsonian to the Statue of Liberty, immediately closed. And of course the communities and small business that rely on these national treasures for their livelihoods will be out of customers and out of luck.
“And in keeping with the broad ramifications of a shutdown, I think it’s important that everybody understands the federal government is America’s largest employer. More than two million civilian workers and 1.4 million active duty military serve in all 50 states and all around the world.”
First it seems that these two statements came in backwards order. Do our national parks rank above our military and civilians workers, especially when you consider that the government is the largest employer?
Then you consider that our government IS the nation’s largest employer. Is that what our founding fathers envisioned?
Finally, going back to what originally struck me. The concern about communities and small businesses that lose income during a government shutdown is a real one, but where was the concern for these folks when Yosemite and other federal properties were raging with fire just a few weeks ago?
Here is another one of those “failure to communicate” issues. There is plenty of blame to go around regarding the sorry state of our government at this point in time. When are we just going to sit down and talk it out face to face rather than through the media?
2013 Joint Stockmen’s Convention
The meeting is just around the corner… December 5 through 8 at the Albuquerque Marriott Pyramid North. Make your plans today to be there!