Sunday, July 17, 2016

DuBois column

Court decisions on wolves and fracturing go our way, but a wilderness acquisition doesn’t.


A recent court decision in New Mexico should be of interest to Game Depts., sportsmen, outfitters and cattlemen across the West.  The issue in question is:  Are federal agencies subject to the same state permits for importing wildlife as are members of the general public?

Since 1998 the USFWS has been importing and releasing Mexican wolves in Arizona and New Mexico, and up until recently has complied with NM law which requires a permit to do so.  In April and May of 2014 the USFWS filed two separate applications to release wolves in NM.  Those applications were denied by the Director of the Game & Fish Dept. on the grounds they were absent a species management plan.  USFWS appealed that decision to the Game Commission, which upheld the decision of the Director.

In October of last year USFWS notified the Game Dept. it would no longer comply with state law requiring permits and that they would continue the reintroduction program without the permits.  Basically, they said “we don’t need no stinking permit.”  NM said “oh yes you do” and filed a notice to sue.  Three days later the USFWS released two wolves (cross-foster pups) in NM without obtaining a state permit.    In addition, the USFWS “plan” called for the release of two to six more pups and a breeding pair with pups.  To combat this, NM sought a preliminary injunction.

And folks, an injunction of this type ain’t easy to get.  NM had to show 1) the state had a substantial likelihood of prevailing on the merits of the case; 2) the state would suffer irreparable injury if the injunction was not issued; 3) that such injury would outweigh any harm to the other party; and 4) the injunction would not be adverse to the public interest.  That’s a high threshold to meet.

The feds challenged on several fronts, but on each NM won the day, with the court ruling NM “has established each of the required factors necessary to obtain a Preliminary Injunction.”  Further, the court declared that 1) The feds had “violated State law” by not obtaining a permit; 2) The feds had violated state law by “importing and releasing Mexican wolf offspring” without a permit; and 3) enjoined the feds from importing Mexican wolves or their offspring without first acquiring the required permits.

To sum it up, the feds do “need a stinking permit.”

In another recent case where several states had filed suit against the BLM over their new hydraulic fracturing regulations, the court ruled “…the Bureau of Land Management lacked Congressional authority to promulgate the regulations.”  Yes, a court has finally ruled a federal agency had overreached.   There is also some wonderful language in the decision which should be music to the ears of producers everywhere.  Just savor the following:

[The Supreme] Court consistently has given voice to, and has reaffirmed, the central judgment of the Framers of the Constitution that, within our political scheme, the separation of governmental powers into three coordinate Branches is essential to the preservation of liberty.

A federal agency is a creature of statute and derives its existence, authority and powers from Congress alone. It has no constitutional or common law existence or authority outside that expressly conveyed to it by Congress. administrative agency's power to regulate in the public interest must always be grounded in a valid grant of authority from Congress.

And it also has this beauty:

Although the Secretary asserts FLPMA delegates to BLM broad authority and discretion to manage and regulate activities on public lands, nothing in FLPMA provides BLM with specific authority to regulate hydraulic fracturing or underground injections of any kind; rather, FLPMA primarily establishes congressional policy that the Secretary manage the public lands under principles of multiple use and sustained yield. ...At its core, FLPMA is a land use planning statute.

That last paragraph may cause several BLM actions to be carefully reviewed.  An example might be their recent policy to regulate lands with wilderness characteristics.


The 16,000 acre Sabinoso Wilderness was established by Congress in 2009.  This was Senator Udall’s baby, but went nowhere until Senator Martin Heinrich arrived on the scene to shepherd it through. Upon Obama's signing of the bill, Udall issued a press release saying the Wilderness "will now be open for grazing, hunting and other recreational uses." There was just one problem:  The area has no public access.  

You’d think that would be the perfect Wilderness.  After all, the sole purpose of a Wilderness designation is to limit human access.  But no, the elite recreationists wanted some type of access.  And in February of this year the Wilderness Land Trust announced they had received a $3,150,000 contribution from the Wyss Foundation, allowing the trust to acquire the Rimrock Rose Ranch which is adjacent to the Wilderness.  As part of the announcement, the trust said they would be partnering with the BLM to donate the lands to the agency, increasing the size of the Wilderness and thereby allowing public access.

Concerning this partnership Senator Udall said, "I'd like to thank the Wyss Foundation and the Wilderness Land Trust"; Senator Heinrich called the two organizations "dedicated partners" and said this was a "great achievement; and Rep. Lujan thanked them for their "efforts".

In June the BLM issued a formal proposal to accept the donation.  There is just one catch:  As part of the deal the BLM has agreed to eliminate two grazing allotments totaling 6,260 acres for which the ranch served as the base property.  This condition was imposed by the Wilderness Land Trust.

So I have some questions.  Concerning the outlawing of ranching on two allotments, do our Reps "welcome" this requirement of the Wilderness Land Trust?   Will Senator Udall and Rep. Lujan still "thank" them?  Does Senator Heinrich still believe this is a "great achievement" by his "dedicated partners"?  Senator Heinrich has attempted in the past to include grazing buyout language in a bill moving through Congress.  Isn’t this a “buyout” of the same nature?

You know the Senators have been monitoring the effort and were briefed on its contents prior to any public announcement.  At any point they could have intervened and sought to influence the agreement so that ranching could continue.  Apparently they chose not to do so.

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 ( and is the founder of The DuBois Rodeo Scholarship and The DuBois Western Heritage Foundation

This column originally appeared in the July editions of the New Mexico Stockman and the Livestock Market Digest.                          

1 comment:

Dave Pickel said...

"There was just one problem: The area has no public access." Indeed. You'd like to keep it that way here and across the West.