DuBois column

A senator’s falsehood, a big win for the Goss family, a BLM move to Denver?

A ‘land grab’, really?

A recent news item appeared concerning the growing rift between New Mexico’s two Senators and the Secretary of the Interior. The primary focus of the column was how Udall and Heinrich disagree with much of what Zinke is doing, in spite of them both having voted for his confirmation.

There were two statements in the column that really grabbed me. The first was by Heinrich:

 “I’m prepared to do anything necessary to protect New Mexico’s national monuments from a Washington, D.C., land grab,” Heinrich said.

That is just hilarious. Sad, but hilarious. Before the monument, most of these lands were managed for multiple use. If necessary, roads could be built. Rights-of ways could be issued. Flood control dams could be constructed, range improvements could be built, geothermal energy could be harvested, sportsmen and recreationists had off-road access to these lands, and so on. Then along came Obama, with the full encouragement of Heinrich, and with the stroke of a pen either prohibited or restricted all of the above. If the monument designation were to be removed, all of those uses would be returned to the people. The review had the possibility of revoking a land grab, not initiating one. Heinrich's attempt to describe it otherwise is laughable.

The other statement in the article, which is not new, is the Senators' concern over accuracy:

Staffers for both senators told me last week that Udall and Heinrich also want Zinke to address errors of fact in the New Mexico sections of the monuments report.

This must be a newfound desire for accuracy, for we didn't hear a peep out of the Senators concerning the many inaccuracies in Obama's proclamation creating the Organ Mountains-Desert Peaks National Monument. Dr. Jerry Schickedanz, Dean Emeritus at NMSU and currently with the Linebery Policy Center, has identified many errors in the proclamation, including objects that aren't even within the boundaries of the monument, and other objects that are either wholly or partially on private or state land, and therefore not in the monument. These and other errors could have been addressed during the review process, but by opposing the review, the good Senators apparently do not want those inaccuracies corrected.

Because of the importance of these documents to the local community and to the health of the natural resource, both should corrected. This selective, narrow focus on errors falls short of good public policy and reeks of pure politics.

Of thistles, poppies & water rights

A pioneer New Mexico ranch family has won an important case for property rights.

The Goss family has been raising livestock in the Sacramento Mountains of New Mexico since 1885. Respect to that family for persevering through all these years with a successful ranching operation.

A hundred years later along comes the Forest Service to erect “enclosures” to keep livestock out of certain riparian areas, ostensibly to protect the Sacramento Mountains Thistle. Additional “enclosures” were later constructed on behalf of the Southwestern Prickly Poppy. In addition to having their livestock fenced off water, in 2000 their allotment was cut from 553 head to 428, with additional cuts in 2004. The Goss family had sought to pipe water into the allotment, but those requests were denied by the Forest Service.

In 2004 the Goss family filed a claim in the United States Court of Federal Claims alleging a Taking under the fifth amendment of their water rights, their grazing permit and their preference rights.  Over time, their claims on the grazing permit and preference rights were dismissed. Further, the New Mexico Supreme Court had ruled that a vested stock watering right did not lead to a right to forage, nor did a right-of-way create a compensable right to forage.

Through many twists and turns this all led up to a favorable 2017 decision on vested (pre-1907) stock watering rights, and rest assured the feds fought it each step of the way.

Among other things, the feds argued that even if there was a compensable property interest in the water rights, the statute of limitations applied in this instance. Wrong said the court, ruling the statute of limitations did not bar the court from adjudicating the Goss’ Taking claims.

The feds argued the Goss documents claiming the right to put the water to beneficial use were inadequate. Wrong said the court, ruling the Goss family had established a prima facie right to beneficial use of the water as required by New Mexico law.

The feds argued the acquisition of a water right under New Mexico law requires a diversion of the water and the consumption of water by livestock is not a diversion.  Wrong said the court, finding that “neither state statutes nor case law require a physical diversion to establish the right of beneficial use of stock water.”

Finally, the feds argued that even if the ranchers had a property right in the use of the water, they were only entitled to beneficial use, not a right of access to a particular location. The court ruled it was a well-established principle that a physical taking occurs if the government denies an owner all access to a property interest. The court further ruled the Forest Service had incrementally, and then finally, denied the Goss family beneficial use of stock water.

In conclusion, the court said before it determines the amount of compensation to be awarded, both parties should make a renewed effort to see if alternative sources of water could be made available.

This is good news for the Goss family and for ranchers with vested water rights, and once again should educate everyone on the importance of water in the West.

The wrong focus

There continue to be reports that Secretary Zinke plans a major reorganization of the Dept. of Interior, including moving the headquarters of BLM and other entities to a western city.

Some want to keep the current centralized system of resource management. Others propose transferring the majority of these lands to the states, or some other form of decentralized management. Zinke appears to be proposing a sort of halfway house, transferring the managers instead of the resource. My thought is that as long as the federal laws (ESA, FLPMA, NEPA, etc.) remain as currently written and interpreted, the same poor results will occur no matter where the federal managers are located. Further, much precious time will be taken up debating where the federal landlords are stationed, rather than focusing on the real problem and potential solutions. 

If your grazing permit is cancelled or your private lands are taken as a result of a critical habitat designation, will you really care whether the decision-maker is in Denver or DC?

I’m afraid this is more about the plain old politics of moving federal jobs and dollars, rather than being a sincere attempt to correct the many problems associated with federal ownership of our resources.

 Here's wishing everyone a Merry Christmas and a prosperous New Year.

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 Decemberr editions of the NM Stockman and the Livestock Market Digest