DuBois column

Its about limits on the President. failures in the courtroom and a truthful enviro 

Monument legislation

It appears Congress is finally moving to amend the Antiquities Act.

Rep. Rob Bishop tells us:

“Between 1906 and 1943, the law functioned basically as designed. Presidents respected the intent of the act. Most monuments were smaller and had clear boundaries with real antiquities inside them. By contrast, designations under the act last year averaged 739,645 acres, or more than 47 times the size of those created 110 years ago.”

“President Teddy Roosevelt was the first president to use the act. He used it 18 times for a combined total of 1.5 million acres. President Barack Obama used it 37 times to designate 553.6 million acres of land and water.”

“Let that sink in: 553.6 million acres (more than half a billion). That is an average of 189,000 acres designated with the stroke of a pen for every single day Obama was in office. It's 830 times the size of Rhode Island, and more than 5 times the size of California.”

“Actions such as these are not the rule of law. It is arbitrary rule by one man.”

The House Committee on Natural Resources has passed Rep. Bishop’s H.R. 3990, the National Monument Creation and Protection Act. Under the provisions of that bill, the President would have the same authority to designate monuments up to 640 acres. Monuments that are between 640 and 10,000 acres would be subject to review under the National Environmental Policy Act. Designations between 10,000 and 85,000 acres would be required to obtain the approval of all county commissions, state legislatures, and governors in the affected area. “H.R. 3990 adds critical details to vague, original legislation regarding the creation and management of national monuments,” said Craig Uden, president of the National Cattlemen’s Beef Association

The Courts

Would you like some good news from our court system? Well I don’t have any.

Let’s start right here in New Mexico. Various allotment owners, grazing associations and Rio Arriba County sued the Carson National Forest, alleging the feds had failed to comply with NEPA because they didn’t consider the social and economic impacts of reducing the grazing permits for the Alamosa and Jarita Mesa grazing allotments. They also claimed former El Rito district ranger Diana Trujillo violated NEPA when she decided to reduce the allotments before the environmental assessment was completed. Not so says United States District Judge James Browning. “NEPA does not, however, require agencies to consider social and economic impacts that flow directly from an action and not from the action’s effect on the physical environment”, ruled Browning. He also found that district ranger Trujillo, “did not violate NEPA by deciding to take a particular agency action before considering the EA’s findings.” Smokey can do no wrong.

 In the Kootenai National Forest in northwest Montana and the Idaho Panhandle National Forests in northern Idaho, U.S. District Judge Dana L. Christensen rejected a challenge by snowmobilers that sought to overturn the U.S. Forest Service’s wilderness recommendations for areas including the Scotchman Peaks and Roderick Mountain in Montana and the Mallard Larkins and Selkirk Range in Idaho.  Judge Christensen ruled the Forest Service has broad authority to manage recommend wilderness areas to preserve their wilderness values, including limiting motorized and mechanized use. Smokey has power.

The United Stated Court of Federal Claims just stuck it to Klamath water users in the culmination of fifteen years of litigation. In 2001 the feds reallocated their irrigation water to benefit threatened and endangered species, so the water users sued claiming a taking of their water rights. Nope said the judge, ruling “The government’s actions in 2001, did not, therefore, constitute a taking of these plaintiffs’ property under the Fifth Amendment of the United States Constitution or effect an impairment of their rights under the Klamath Compact.” Seems as though some lost out due to the language in the contracts they signed which held the government harmless, and others lost out because their rights were junior to those held by several Native American tribes. If the judge had ruled the other way, the estimated pay out would have been $28 million. Build it and they will take it.

Come on, DuBois, surely there’s at least one case where the feds lost? Yes, there is one, unfortunately. It involves the cactus ferruginous pygmy-owls in Arizona. Under the Endangered Species Act, officials must determine whether a species is at mortal risk throughout either all or a significant portion of its range. It is that last clause that interests us here, because the feds have denied listings based on it. However, an Obama-appointed judge has ruled The U.S. Fish and Wildlife Service’s “significant portion of its range” policy is “'arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” And this doesn’t just apply to the pygmy-owl. It has thrown out that policy across the entire nation. Obama is still with us.

A truthful enviro  

Finally, one of them has come right out and said it. George Wuerthner, writing in High Country News, belittles his fellow enviros who publicly advocate working with rural communities and ranchers, and trying to gain their support on the wolf issue. All that does, says Wuerthner, is help “wildlife managers justify killing packs or individual wolves whenever they prey on cattle” and “add to the delusion that widespread co-existence between predators and livestock is possible.” And he’s not done. “As long as the dominant paradigm is that a rancher’s livestock has priority on public lands, we will never fully restore native predators to our lands. That is why we need to reframe the narrative and recognize that domestic livestock are the ‘problem’ for our native wildlife,” says Wuethner.

So you-all should be watching out for those narrative reframers. As for me, I can spot’em a mile away.

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 (www.thewesterner.blogspot.com) and is the founder of The DuBois Rodeo Scholarship and The DuBois Western Heritage Foundation

 This column first appeared in the November editions of the NM Stockman and the Livestock Market Digest