Wednesday, July 05, 2017

DuBois column

An abuse of federal law that is harming many New Mexicans

A monument worthy of revision

We’ve received word it is highly likely Secretary Zinke will be coming to New Mexico to fulfill his obligations to review recent national monument designations, and that would include the almost 500,000-acre Organ Mountains-Desert Peaks National Monument (OMDPNM). That is the designation with whch I am the most familiar, and I believe Secretary Zinke should concur with the recommendation of Rep. Steve Pearce that the monument be diminished to only include the footprint of the Organ Mountains.

That would be the proper and reasonable approach to take for the following reasons:

º If one is looking for a classic case of federal overreach, this is it. The Antiquities Act of 1906 authorized the President to protect “historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest” as monuments. How? By reserving parcels of land. How much land? Those parcels, “in all cases shall be confined to the smallest area compatible with proper care and management of the objects to be protected.” Just the opposite occurred in Dona Ana County. The boundaries were drawn years ago by the New Mexico Wilderness Alliance (2003, 497,790 acres). Over the last eight years five different bills have been introduced in Congress to create either a combination of Wilderness and National Conservation Area or Wilderness and National Monument. Since none of these bills advanced beyond the committee level, the hunt was on to find objects to justify the already established boundaries. Some of the objects listed in the President’s proclamation don’t even exist in the monument, as they reside on private or state lands. In other words, the process was bass akwards and clearly an abuse of the Antiquities Act.

° The end result of this “process” is a 496,330-acre monstrosity that is in four separate parcels, separated by two Interstate Highways, two cross country railroads, the Rio Grande River, a major gas pipeline, a major fiber optics line, encompasses a major southern tier FAA radar site, and overlays four major energy transmission lines.

Those are some of the technical reasons this designation should be diminished. But there are many more reasons, with some examples being:

° The so-called “listening session” in Las Cruces by former Secretary Jewel was a complete sham. The well-funded enviros bused in their supporters from Santa Fe, Albuquerque, Silver City and El Paso. The Dona Ana County Sherriff, Todd Garrison, who was opposed to the monument, was barred by U.S. Marshals from entering the hearing room. An orchestrated, stacked deck event had occurred.

° Given the monument’s close proximity to the border with Mexico, the limitations placed on federal, state and local law enforcement concerned many folks, and explains why the designation was opposed by Sheriff Garrison, and why it was also opposed by the New Mexico Sheriffs Association, the Southwest Border Sheriffs and the National Association of Former Border Patrol Officers. Victor M. Manjarrez Jr, the former Chief of both the El Paso and Tucson sectors of the Border Patrol recently wrote, “Where large expanses of lands occur with conditional or restricted access, cross border illicit entry will pose a real and constant danger.  The status of the Potrillo and Las Uvas portions of the monument must be reconsidered.  Those areas were of concern during my tenure as El Paso Sector Chief and they have only become more dangerous with the designation and the resulting tactical advantages the cartels seek.” The southwest border with Mexico has been called a “gaping wound” by Trump’s Secretary of Homeland Security, John F. Kelly, and designations that place limits on law enforcement will inhibit healing that wound and place public safety in jeopardy.

° The proclamation creating the OMDPNM has the most anti-livestock grazing language of any National Monument where grazing is still allowed. Ranchers face the prospect of not being able to conduct standard daily ranching operations; of not having new range improvements approved; and in some cases, not being able to maintain existing range improvements.

° Since only 10 percent of Dona Ana County is privately owned, limitations on the current use or potential future use of federal lands has a detrimental impact on all of its citizenry

There are many other issues, including watershed restoration, flood control, dam maintenance, rights of ways for utilities and so on, but those listed should give Secretary Zinke plenty of fodder to recommend diminishing the size of the monument.

The politicians speak

Both New Mexico Senators are opposed to the review, and NM Rep’s Lujan-Grisham and Lujan have stated their opposition.

At a recent Congressional hearing, Senator Tom Udall asked Secretary Zinke flat out, “Will you commit to me today that you will respect the wishes of the vast majority of New Mexicans and maintain the existing boundaries of these two monuments?" Concerned that Zinke did not directly respond, Senator Udall issued a statement saying, “I will stand with thousands of New Mexicans, including sportsmen and small business owners, and fight to ensure their wishes are protected, and these monuments are not undermined in a political effort by the Trump administration to sell off our public lands to the highest bidder."

Rep. Steve Pearce, who represents the area where the monument resides, is very much in favor of the review. “The Obama Administration, and the Administrations before it, repeatedly abused the Antiquities Act by creating expansive national monuments,” said Pearce.  “New Mexicans,” Pearce continued, “and folks all across the nation, deserve to have access to federal lands for recreational use, hunting, grazing, and the economic opportunity that comes with it.” At a recent Congressional hearing on the House side, Pearce told Zinke, “The Organ Mountains-Desert Peaks National Monument is a very highly volatile issue in the district,” so much so that even, “when the Democrats owned the House and had a filibuster-proof Senate and Mr. Obama was in the White House, they still could not get this passed through law because it was so contentious.”  Pearce handed the Secretary a list of over 800 “businesses and individuals” who wanted to see the OMDPNM, “not revoked, but taken back down to the smallest footprint.” In other words, to only include the Organ Mountains proper.

Both NM Senators and other opponents of the review are fond of touting the economic benefits the monument designation has purportedly brought, including increases in visitors, in tax revenue, and even in the creation of new businesses. These arguments shouldn’t carry much weight with anyone. The icon and main attraction of the monument is the Organ Mountains. Images of those mountains are what appear on advertisements, websites and other venues promoting the monument. Under the Pearce proposal, the national monument would still exist and the Organ Mountains would still be in the monument. Whatever economic benefits which may be occurring would still occur. Nothing will have changed on that front and it is therefore a faulty argument in opposing the review and revision of the monument’s boundaries.

I look forward to Secretary Zinke’s visit to southern New Mexico.

Until 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

The original version of this column appeared in the July editions of New Mexico Stockman and the Livestock Market Digest. 

I don't have the column-type space limitations placed on me here, so the following is a further discussion of the anti-grazing language in the OMDP Proclamation.

More on the anti-grazing language

A new phrase has been added to the livestock grazing language in the OMDP Proclamation that makes it the most anti-grazing of any Proclamation where grazing is still allowed. The new language is underlined:

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 protection of the objects identified above.

This “consistency” phrase sets up a two-tiered management system, where other uses (such as wildlife, recreation, science, etc.) are the dominant use and livestock grazing is the subservient use. If a rancher wants to maintain an existing range improvement or continue a current management practice and it is determined to be not consistent, that maintenance or current management practice will be denied or not be allowed. The same would hold true for constructing a new range improvement, as livestock grazing is no longer on an equal footing with other uses.

The environmental community wanted this new language in the Proclamation, as they have not had the success they had hoped for in filing lawsuits against livestock grazing in National Monuments.

Who is responsible for this anti-grazing language? Look no further than Senators Udall and Heinrich. Six months prior to President Obama signing the OMDP Proclamation, they introduced the Organ Mountains-Desert Peaks Conservation Act, and therein you will find the “consistency” phrase.

To demonstrate just how anti-grazing the OMDP language is, let’s compare it to a Proclamation signed by President Obama a year later. The Proclamation for the 700,000-acre Basin and Range National Monument in Nevada reads:

Nothing in this proclamation shall be deemed to affect authorizations for livestock grazing, or administration thereof, on Federal lands within the monument. Livestock grazing within the monument shall continue to be governed by laws and regulations other than this proclamation.

The language is clear and precise that the designation does not affect the administration of livestock grazing, and results in livestock grazing being on an equal footing with other uses.

In the New Mexico monument, grazing is subservient to all the other objects to be protected, while in Nevada the monument designation has no affect on grazing.  How can this be?  Where is the “consistency” in that? Why are ranchers in one state treated differently than ranchers in a similar situation in another state? The NM ranchers should not be singled out and discriminated against  and President Trump can remedy this by revising the NM Proclamations accordingly.


Anonymous said...

Mr. DuBois: On what basis did the marshals have to keep the sheriff from attending the scam meeting? Or better yet why was the meeting allowed to take place without representative local attendance. Like maybe a little insurrection? Please explain how the federales set this up.......thanks, soapweed

Frank DuBois said...

The room was packed and they said it would be a violation of the fire code to let him in.

We were given about 24 hours notice the Sec. was coming. Its clear the enviros had several days notice...they had time to charter all those buses, etc.

There was a panel, and the chamber of commerce and our local rancher's group had reps to speak in opposition, however...they opened the meeting room 2 hrs. early and the busloads of enviros were there to pack the seats, so you can imagine what happened when the threw it open for public comments.

Anonymous said...

Wow...... now we have marshals enforcing the fire codes......thanks sir. soapweed

Anonymous said...

"Subservient". I am tired of Americans rights/property rights being redefined, becoming subservient to a rodent, reptile or anything else.

Anonymous said...

I dont care about your cows. may dust be with you