The Road

Regulatory Tyranny

The Road

The Law of the West

By Stephen L. Wilmeth

 

            I just got in from making a circle up through the Coldiron Pasture and around the Burris Pasture.

            My passenger was a Virginian, but her roots are firmly Mesilla Valley. DJ had asked me to show her the ranch with the hope that she could impact Washington mindset regarding the plight of land stewards who are dependent on national monument lands. Her influence runs through her clients and associates into the new administration.

            It was interesting listening to her history and how she had once considered herself a liberal. She had gone to law school in California which should have sealed her fate permanently, but exposure to the east coast and Washington altered her thinking. Her heritage, her genes and the influence of chile all stood in juxtaposition to her perceived thinking, and, horrors of horrors, her realization changed.

            Blame it on the chile, but the importance of free and independent men and women became her passion. She counseled me that the fight was not lost … that our western heritage is worth the effort.

            The Road

            Once upon a time in the world “before monument”, there was a road that ran through the lowest part of Apache Flats. It is a nondescript two track road that has served the purpose of managing the current livestock operation as well as providing access to hunters and modern adventurers in abundance. It doesn’t stand apart from any road of its character, and, quite frankly, it can serve as a proxy to any of the thousands of similar roads in the federally dominated West.

            When I first met the road in 2003, my suggestion to the federal official under whom I would operate, was to close it. “It would take an act of Congress to do that,” was the response.

            “Well, if that is the case, I want to fix it before we have more significant erosion,” was my naïve rebuttal.

            “You can’t do that,” I was warned. “Any repair would have to be designed and overseen by a BLM hydrologist.”

            “Well, schedule this certified person, and let’s get this done,” was the parting response.

            In 2015, the only federal expert that fit that description finally visited the ranch. He was accompanied by another federal official, a professional engineer, who has designed and given valuable guidance in water projects that we have done over the years.

            When we reviewed “The Road”, they were as appalled as I am over its deterioration.

            There were words among the accompanying staff that rendered the 2003 order careless and contemptable. Proof, if was needed, was abundant in county maintained roads that were sculpted and maintained under the ranch’s participative guidance, but we must all remember the county is a governing body and a rancher is, well, he is just a rancher.

            The Law of the West

            Ranch roads on federally dominated, mixed ownership lands are perhaps the most visible objects of regulatory meandering and outright assault on our way of life. It isn’t just the number of regulations, but the interpretation and the changing prescriptions for their maintenance. For example, at the beginning of 2017 the process to repair such a road was to notify the BLM six weeks prior to any planned repair and await the agency’s response to go to the next step. Other than where there was a restricted land designation, it would be expected that there would be limited, but reasonable ability to harvest fill material from alongside the road. Every knowledgeable rancher assumed, without hesitation, the maintenance of such a road was implicit in his grazing permit just like every other improvement. It was mandatory. It was not just important for our modern dependency on access, it has to be done to preserve equipment that has become so expensive.

            Fast forward to December 15, 2017, and the dictates of road maintenance has changed. It is uncertain as to the notification period, but the procedure now follows a permitted thread whereby, if there is not a legal right-of-way or permit that defines exactly what maintenance actually implies, nothing can be done outside of the historic footprint of the road. That means no fill material can be sourced from the federal domain if there is not a permit allowing it. So, unless it is not clearly set forth otherwise, that material can only be sourced from private or state trust lands. If the closest private land is one mile or 50 miles away, that is just the way it is going to be done.

            Cutouts to redirect flow from these roads are also disallowed unless the practice is described in that written permit or right-of-way. This means that all water now entering these roads cannot be redirected to minimize further damage. It also implies that the only maintenance allowed will be cutting deeper and deeper within the established footprint. Further, any cutouts not inventoried can only be made created through the NEPA process. For the record, current waits on new action are multiple years.

            The public, or course, will not drive on these ever deepening channels. They will drive around these areas and expand the road in an ever widening scar of erosion just like they have done in the now 14 years since I first asked the BLM to send their expert to instruct me how to save the road and limit the damage in Apache Flats.

            Regulatory Tyranny

            In a parallel circumstance, a prominent Luna County rancher who has the letter detailing the early 2017 road protocol (and was a participant in the meeting updating the December 15 changes) was told to disallow his cowboys from driving in the expanding scarred area of his own version of the road. He responded that his cowboys stopped driving around these areas long ago because they can no longer get their loaded trailers through them or around them. It is the public that is driving around the original footprint, but the ranch was on the receiving end of the blame.

            The hypocrisy is deafening, but nothing is made better with this kind of relationship. The chameleonesque evolution of regulations is driving wedges from every direction. In short, the agency needs a director that can create calm in a stormy sea of western land stewardship. Moreover, Congress needs to fix historical problems that have been allowed to fester and become ever more contentious.

            Stephen L. Wilmeth is a rancher from southern New Mexico. “For the record, land ownership on the action disallowed by the BLM official was … New Mexico state trust land.”