Newspaper column: New endangered species rule falsely maligned

When the Interior Department released new rules for enforcing the 45-year-old Endangered Species Act (ESA) this past week, self-styled environmentalists and many in the news media falsely maligned the changes, saying they would require the Fish and Wildlife Service to consider economic impact in deciding whether to list a species as endangered or threatened.

In fact, the press release announcing the finalizing of the new rules specifically states that designations will be based solely on the “best available scientific and commercial information” as the original law dictates. The change simply allows the public to be informed of economic impacts created by the law by removing the phrase “without reference to possible economic or other impacts of such determination.”

The rule change proposal noted, “Since 1982, Congress has consistently expressed support for informing the public as to the impacts of regulations in subsequent amendments to statutes and executive orders governing the rulemaking process.” The only change is giving the public more information.

“The best way to uphold the Endangered Species Act is to do everything we can to ensure it remains effective in achieving its ultimate goal — recovery of our rarest species. The Act’s effectiveness rests on clear, consistent and efficient implementation,” said Interior Secretary David Bernhardt in the press release. “An effectively administered Act ensures more resources can go where they will do the most good: on-the-ground conservation.”

Nevada Sen. Catherine Cortez Masto reacted on Twitter: “Trump’s gutting of the Endangered Species Act — even as species struggle with the effects of the #ClimateCrisis & human activity — threatens protected species & could put even more plants and animals at risk.”

The rule changes actually should help address a fundamental problem with the enforcement of the ESA up until now — that it focuses almost entirely on limiting any conceivable profitable use of land or water that is “critical habitat” of an endangered or threatened species, thus maintaining a fragile status quo rather than actually encouraging recovery of the species population.

The Property and Environment Research Center (PERC), which refers to itself as the home of free market environmentalism, reports that more than 1,600 species are listed under the ESA, but only 39 species have been determined to be recovered since the law passed (half of those mistakenly listed in the first place), while 11 have become extinct. Nevada has 16 endangered species and 11 threatened.

Previously, when states tried to reintroduce endangered species by breeding, the federal government threatened to sue, saying possession of the species required a federal permit, which it refused to issue.

Another significant change requires that when designating critical habitat that the species is actually present or the area has features essential to the species’ conservation.

This addresses issues raised by a Supreme Court case out of Louisiana in which the owner of 1,500 acres of land was prohibited from using the property because it was declared critical habitat for the dusky gopher frog, even though none of the frogs had been seen in the area for 50 years and the land itself could no longer support the frogs.

The case was finally settled in July in the property owner’s favor. 

Mark Miller, an attorney for the Pacific Legal Foundation which sued on behalf of the landowners, said of the agreement, “This federal frog feud is over, and property rights and good government win. The government tried to ban development of 1,500 acres of private property at a cost of $34 million in the name of an endangered frog that does not live on the property and cannot survive there. The feds may as well have labeled this Louisiana property critical habitat for a polar bear. It would have done just as much good.”

Also, in the future a species listed as threatened would not be treated as stringently as those listed as endangered, as currently is the case. 

Advocates of the changes say this will provide incentives for landowners to help species recover. In the past, landowners confronted with restrictions under the ESA were said to have been incentivized to shoot, shovel and shut up. No species. No restrictions. 

“Our interest is getting this landmark wildlife protection law to work better,” said PERC’s executive director Brian Yablonski in a statement. “That means fostering conditions so landowners become more enthusiastic in their role as stewards for species recovery, not worried if they find an endangered species on their land. States and landowners will respond better to carrots, not clubs, in our efforts to improve species recovery results.” 

Delisting of species is preferable to merely maintaining the status quo in perpetuity.

A version of this column appeared this week in many of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel and the Lincoln County Record — and the Elko Daily Free Press.

Editorial: Moving BLM HQ out West is a welcome change

The Interior Department this past week announced that it is moving the headquarters of its Bureau of Land Management (BLM) division out of Washington, D.C., and west to Grand Junction, Colo., as well as moving a number of senior management staffers into 11 Western states, including 50 to Nevada, according to The Associated Press.

While the agency estimates the move could save as much $100 million over the next 20 years due to lower office space costs and lower cost-of-living differentials for federal employees, a more important and significant aspect may be putting the bureaucrats who manage 388,000 square miles of federal public land in 12 Western states closer to the people who are affected by their decisions. Human nature dictates it is harder to look across your desk at a neighbor and say no to a profitable endeavor than it is from 2,000 miles away.

That’s essentially what Secretary of Interior David Bernhardt intimated in a press release announcing the decision, “A meaningful realignment of our operations is not simply about where functions are performed; rather, it is rooted in how changes will better respond to the needs of the American people. Under our proposal, every Western state will gain additional staff resources. This approach will play an invaluable role in serving the American people more efficiently while also advancing the Bureau of Land Management’s multiple-use mission. Shifting critical leadership positions and supporting staff to western states — where an overwhelming majority of federal lands are located — is not only a better management system, it is beneficial to the interest of the American public in these communities, cities, counties, and states.”

In a letter to Congress, Joseph Balash, an assistant secretary of the Interior, said about 300 jobs are to be moved West in the coming year and about 60 positions will remain in Washington to handle budget and policy issues and work with Congress. The BLM already has about 10,000 jobs in the West.

Grand Junction would get less than 30 of the 85 new jobs slated for Colorado, with most of the rest residing in suburban Denver, where the federal government already has a number of regional offices. In addition to Nevada’s 50 new jobs, Utah is to add 45 and Arizona and New Mexico about 40 each. 

Of course some Democrats in Congress oppose the move, which started under former Interior Secretary Ryan Zinke, because it lessens their sway.

Democratic Rep. Raúl Grijalva of Arizona, chairman of the House Natural Resources Committee, said in a statement posted on his congressional website, “This administration has been handing over public lands to fossil fuel companies at record speed, and this move is part of that agenda. Putting BLM headquarters down the road from Secretary Bernhardt’s home town just makes it easier for special interests to walk in the door demanding favors without congressional oversight or accountability. The BLM officials based in Washington are here to work directly with Congress and their federal colleagues, and that function is going to take a permanent hit if this move goes forward. The agency will lose a lot of good people because of this move, and I suspect that’s the administration’s real goal here.”

Bernhardt is from Rifle, Colo., about 60 miles east of Grand Junction.

The AP quoted Kathleen Sgamma, president of the oil industry trade group Western Energy Alliance, who had a different take on the question of influence. “The whole focus will be on the West, where it should be,” Sgamma said. “Right now, it’s easy to sit in D.C. and deny a rancher a grazing permit. It’s not so easy when he’s sitting across the table from you.”

In a similar vein, the AP quoted Mike Noel, a rancher and former Utah state lawmaker, as saying, “Having the BLM out here and closer to the ground, we’re going to get better decisions. There’s a different philosophy out here than there is in Washington, D.C.”

As we said, it is harder to say no to your neighbor, and that is a good thing. The move is a welcomed effort to better serve those most impacted by BLM decisions. 

A version of this editorial appeared this week in some of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel,  Sparks Tribune and the Lincoln County Record.

Photo courtesy Visit Grand Junction, shows Rattlesnake Canyon, one of many BLM-administered natural wonders in Colorado’s Grand Valley.

Newspaper column: BLM rule change doesn’t signal wild horse slaughter

Wild horses being affected by drought. (AP pix)

Wild horse advocates are apoplectic over a change in rules for selling off wild horses recently announced by the Trump administration’s Bureau of Land Management, saying it could lead to the animals being sold for slaughter.

In 2013, after learning that Colorado rancher Tom Davis, a friend and neighbor of then-Interior Secretary Ken Salazar, had over a three-year period sold 1,800 wild horses he had purchased from the BLM for slaughter in Mexico, the BLM instituted a rule that no one could purchase more than four wild horses in a six-month period without approval of the agency’s deputy assistant director of resource and planning.

In May, the BLM issued new guidelines saying up to 25 wild horses could be sold without prior approval up the chain of command.

“The federal government is about to resume selling America’s cherished wild horses and burros by the truckload, sending potentially thousands of mustangs into the slaughter pipeline against the wishes of 80 percent of Americans,” fulminated Suzanne Roy, executive director of the American Wild Horse Campaign (AWHC) in a press release this past week. “This Administration appears hellbent on destroying America’s iconic wild horse and burro herds, and this is the latest step on that path to destruction.”

Pay no heed to the fact the BLM spends 60 percent of its annual budget for handling wild horses and burros on warehousing 46,000 of them in corrals and private pastures, while there are 83,000 wild horses and burros on a range that can adequately sustain no more than 27,000. Nor to the fact that earlier this year BLM officials desperate to rid themselves of the expense of feeding all those “wild” animals were contemplating offering $1,000 incentives to anyone willing to take some off their hands.

An Interior Department inspector general report in 2015 found that Davis over three years bought truckloads of 35 horses at a time for $10 each and sold them to others who took them to Mexico for slaughter. Davis made up to $3,000 profit per truckload. The case was referred to federal and local prosecutors who declined to prosecute, criminally or civilly.

Davis told inspectors that BLM officials had to know so many horses were going to slaughter.

Congress for years has effectively banned the slaughter of horses for meat in the U.S. by denying funding for health inspectors.

The new BLM guidelines for selling wild horses say untrained animals may be sold for as little as $25 apiece, while horses trained to halter or saddle must fetch $125. Purchasers also must provide adequate feed, care and a facility, such as a corral, barn or stall.

Applicants also must swear that the animals are not intended for “slaughter or bucking stock, or for processing into commercial products …”

Though the limiting of sales to only four horses at a time appears to have not been financially conducive to either buyers or taxpayers, and despite the lessons learned from the Davis probe, AWHC’s Roy forecasts doom and gloom will result from the change in rules.

“When you’re selling horses by the truckload for $25 apiece, it provides a big incentive for slaughter,” Roy was quoted in her press release. “Since riding a horse to his first day of work, Interior Secretary Zinke has galloped down a deadly path for America’s wild horse and burro herds – from asking Congress for permission to slaughter tens of thousands of these cherished animals to promoting the mass surgical sterilization of mustangs and burros on the range. Zinke is pushing the livestock industry agenda to rid our public lands of wild horses and trampling on the wishes of American citizens in the process.”

In a recent interview, Nevada’s senior U.S. Senator Dean Heller said he has spoken with Zinke and a middle ground on this matter is being sought.

“Zinke assured me he’s looking at this issue. They’re looking at a number of different avenues how they can cull these herds without, frankly, having to remove some of these horses from the range, but they do believe they can put together a sterilization program and something that in five to 10 years can reduce the size of these herds,” Heller said. “There is a discussion out there. These discussions are being had — looking for a reasonable, reasonable answers to this, and trying to come up with a program or a process that both sides can agree on.”

When it comes to the taxpayers being on the hook to try to preserve non-native species in perpetuity, all means should be stoically explored.

A version of this column appeared this week in many of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel and the Lincoln County Record — and the Elko Daily Free Press.

Editorial: No solution for wild horse overpopulation in budget

The wild horse can has been kicked down the road yet again.

Congress could not possibly find a way in its 2,232-page, $1.3 trillion budget that President Trump signed a couple of weeks ago to do anything whatsoever about the overpopulation of wild horses.

The Interior Department’s FY2019 budget at one time included this language: “The 2019 budget continues to propose the elimination of appropriations language restricting BLM’s use of all of the management options authorized in the Wild Free-Roaming Horse and Burro Act. This change will provide BLM with the full suite of tools to manage the unsustainable growth of wild horse and burro herds.”

Among those tools could have been the humane slaughter of sick and unadoptable wild horses and burros that are starving on the overgrazed range in the West. That was the intent of the 1971 Wild Free-Roaming Horse and Burro Act, but every federal budget since 2009 has prohibited this commonsense approach.

So we are stuck with spending $50 million a year to warehouse 46,000 “wild” horses in pens and pastures, while 73,000 roam free on grazing land that can sustain only 27,000 animals. The main population reduction method left for the federal land agencies is adoption. According to The Washington Post only 3,500 wild horses were adopted in 2017.

“We are thrilled that Congress has rejected this sick horse slaughter plan,” the Post quoted Marilyn Kroplick, president of the animal rights group In Defense of Animals, as saying in a statement that claimed horse lovers had “jammed Congressional phone lines with calls and sent tens of thousands of emails” to make their case.

On the other hand, in the real world, Utah Republican Rep. Chris Stewart in an op-ed in The New York Times in December, cited an example of the conditions on the ground, noting that in 2015 the Bureau of Land Management sent agents into the desert outside Las Vegas to round up about 200 wild horses that were reported to be starving to death.

“Bureau employees discovered nearly 500 horses,” Stewart wrote. “They had pounded their range to powder; the desert grasses that remained had been eaten to the nubs. Nearly 30 were in such poor condition they had to be euthanized, and many others were on the brink of death.”

The BLM had determined that the 100,000-acre expanse where these horses were grazing produced only enough grasses and water to sustain 70 horses, the congressman concluded.

Stewart advocated euthanizing excess horses. “I understand that some will recoil from this approach. But anyone who really cares about these majestic animals must understand that other efforts have failed to curb their exploding population and that culling these herds to numbers the land can sustain is the best way to prevent further suffering and death,” he concluded.

According to the BLM, if nothing is done, by 2020 there will be 130,000 feral horses and burros on BLM-controlled lands, still starving and dying of thirst and crowding out other species and competing with cattle and sheep for forage.

The BLM canceled a meeting of its National Wild Horse and Burro Advisory Board scheduled for late March in Salt Lake City when a member objected to using a 15-day public notice for “urgent matters,” instead of the customary 30 days. The terms of three board members expired on March 31. Another meeting will be scheduled once new members are seated.

That may be a futile gesture. At a 2016 meeting in Elko the advisory panel recommended “offering all suitable animals in long- and short-term holding deemed unadoptable, for sale without limitation or humane euthanasia.” The recommendation was ignored.

Meanwhile, nothing is being done to the relieve the suffering of feral horses.

A version of this editorial appeared this week in some of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel,  Sparks Tribune and the Lincoln County Record.

Editorial: Court should force feds to start over on sage grouse assessment

Nevada Attorney General Adam Laxalt has filed what he is calling his final brief in the lawsuit challenging the Interior Department’s economically crippling land use restrictions under the guise of protecting greater sage grouse, perhaps signaling that the case is nearing culmination.

As with previous filings Laxalt accuses the Fish and Wildlife Service and the Bureau of Land Management, divisions of the Interior Department, of violating the law and ignoring scientific evidence when it concocted a 341-page pronouncement in September that 10 million acres of public land in 16 Western states — nearly a third of that in Nevada — would be taken out of consideration for future mining claims, as well as oil and gas drilling near breeding grounds and that there would be additional reviews on grazing permits. The plan envisions restrictions on grazing, resource development, solar and wind energy, and public access on more than 16 million acres of public land in Nevada altogether. This is being done even though the government declined to list the sage grouse under the Endangered Species Act.

Greater sage grouse (BLM photo)

The legal challenge in federal court is being pressed by the state, nine rural counties, two mining companies and a ranch.

“Along with a majority of Nevada counties, my Office has been pushing back against the federal government’s overreaching sage grouse land plan for almost a year,” Laxalt is quoted as saying in a press release accompanying the court filing. “As our latest brief again demonstrates, the Bureau of Land Management’s rushed, one-size-fits-all sage grouse plan not only violates multiple federal laws, but also the agency’s own regulations. The BLM blatantly disregarded the many Nevada experts and stakeholders, and failed to consider how its plan would impact Nevadans. This approach to regulation is as dismissive to our State as it is illegal, and I remain dedicated to protecting the interests of Nevada and ensuring that agencies follow the law and take the State’s concerns and interests into account.”

In the brief, the state argues that the plaintiffs have standing to bring the suit, a matter disputed by the government, because of the harm that will befall the state and county governments, as well as the private businesses. The BLM’s own Economic Impact Summary, prepared by BLM economist Josh Sidon in 2015, “estimates a loss of $31 million and 493 jobs annually for livestock, oil and gas, geothermal and wind in Nevada, stating that Nevada bore the largest impact from reduced wind energy development, with Elko and White Pine Counties hit the hardest.”

But that low balls the impact because it does not take into account the loss of revenues due to minerals being left in the ground. Laxalt argues that the BLM ignored or misrepresented in its analysis the impact of lost mining claims on 2.8 million acres in Nevada, including the loss of $32 million in investments by one mining company.

A previous brief pointed out that the land use plan jeopardizes development of a mine that could be worth $3 billion — 1.4 million ounces of gold and 21 million ounces of silver.

The current brief notes, “Defendants ignore the importance of discussing how mining claims in the SFA (sagebrush focal areas) will be impacted by the proposed withdrawal. Defendants mischaracterize the emails discussing this very issue,which criticize the agencies’ failure to disclose that half of all U.S. mining claims are located in Nevada: ‘… it is a serious omission not to include mining claim data. How can impacts to locatable minerals be adequately addressed if this data is not known?’” That last quote is from an internal BLM email discussing the failings of their own analysis.

The court should grant the relief sought by the plaintiffs to force the Interior Department to start over with a Supplemental Environmental Impact Statement, one that accurately reflects the economic and scientific facts instead of being crafted to fit a predetermined political agenda.

A version of this editorial appeared this week in some of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel,  Sparks Tribune and the Lincoln County Record.

Newspaper column: Governor offers a way to save sage grouse and mining

Gov. Brian Sandoval is imploring the Interior Department to accept a state-created alternative to its proposed draconian plan to remove millions of acres of federal public land from productive use — specifically mining — as a way of paying lip service to saving greater sage grouse habitat.

In September the federal agency declined to list the bird under the Endangered Species Act and instead issued land use plans that bar mineral exploration and development on nearly 3 million acres within Nevada and restricts grazing and public access on a total of 16 million acres in the state.

Greater sage grouse (Rawlins Daily Times via AP)

On Jan. 15, Sandoval sent a letter to Neil Kornze, director of the Bureau of Land Management, which is a division of Interior and the agency overseeing the bulk of federal public lands in the state, asking him to accept a state proposal that would essentially swap parcels of land to be protected. Instead of restricting mining on 555,000 acres as the federal land use plan outlines, the state plan would restrict mining on 394,000 acres, but the swap would protect an additional 44 active sage grouse leks, as breeding grounds are called. The swap also could free up as many as 3,700 existing mining claims.

The governor warned in a press release this past week that failure to negotiate in good faith would result in his administration pursuing legal options.

Such a legal option is already being pursued, though the governor has insisted it is premature. The state, nine counties, three mining companies and a ranch have filed suit in federal court to block the land use plan.

A Reno federal judge refused to grant an injunction but a trail could take place this summer.

In his letter, Sandoval argues that the grouse protection restrictions would have serious economic impact on the Nevada economy and jobs.

A single lithium mining project in Humboldt County is estimated to have a direct economic impact of $2.5 billion over the life of the project and indirect impact of $3.4 billion, while creating 9,000 person-years of employment and half a billion dollars in salaries. State and local tax revenues are expected to exceed $100 million.

Lithium is used to make lithium-ion batteries used in electric and hybrid cars. The Tesla Motors/Panasonic battery manufacturing plant near Sparks is expected to consume a huge amount of lithium.

“I believe the proposed land withdrawal will not be able to show any measurable results except for the demise of the mineral exploration industry in Nevada,” Sandoval pointedly states. “The urgency to implement the withdrawal proposal prior to conducting the proper analysis needed to evaluate the efficacy of the action and socio-economic impact of the action is unclear,” adding that the agencies involved have “provided no science or analysis at any level to support the rationale” for excluding mining operations.

As for the threats to sage grouse habitat, Sandoval notes, as he has repeatedly in the past, that wild horse overpopulation, invasive species and huge wildfires that consume hundreds of thousands of acres at a time pose a far more significant danger to the grouse than mining, but little, if anything, is being done about those threats.

Additionally, there is relatively little reliable information on just how threatened the grouse population really is. Sandoval’s letter notes one major grouse habitat region nearly doubled in population during a recent three-year period.

Though Interior Secretary Sally Jewell stated that valid existing mining claims are exempt from any withdrawals, the governor points out that the definition of such valid claims cannot be found in the Federal Register. There is a question as to whether unpatented mining claims — on which millions of dollars in annual fees have been paid but the claims are not yet worked — will be classified as valid existing claims. Sandoval said this needs to be clarified.

In a press release this past week, Sandoval described his proposal as a win-win. “The proposal detailed in the state’s response delivers a ‘win-win’ solution in an effort to achieve the mutual goals of preserving our thriving mining industry, protecting the sage-grouse and enhancing its habitat and maintaining our state’s vast potential for future economic development opportunities. With the correct plan and management Nevada’s mining industry, the sage-grouse, and future economic development can all coexist and flourish in the Silver State,” he wrote.

BLM Nevada spokesman Stephen Clutter told The Associated Press, “We will certainly give serious consideration to these ideas as well as the other scoping comments we have received.”

That would be a change from past behavior.

A version of this column appears this week in many of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel, the Lincoln County Record and the Sparks Tribune — and the Elko Daily Free Press.

How the bureaucrats are conquering the West

One problem with the federal control of so much land in the West is that the bureaucrats are hell bent on expanding their domains.

That wildlife refuge in Oregon, where the Bundy brothers and like-minded protesters are camped out, has grown to double its original size in the past century, gobbling up ranches by hook and/or crook.

As I’ve reported previously, several years ago a high ranking executive with the Interior Department explained during a newspaper editorial board meeting that the unwritten policy of the agency was “acre-for-acre” — meaning that for every acre of federal land that was sold for private development, an acre of private land somewhere else should be purchased, so the agency holdings would never decline. This was not a policy to preserve the land, but one to preserve federal jobs and the power of the executives.

In November, Obama put this policy in writing. In a presidential memoranda to the various agencies that control federal land, Obama told the agencies they “should establish a net benefit goal or, at a minimum, a no net loss goal for natural resources the agency manages …” To the bureaucrats, “no net loss” doubtlessly is “acre-for-acre” writ in stone.

On Wednesday, an Interior Department press release confirmed this stance.

“U.S. Secretary of the Interior Sally Jewell today announced the U.S. Department of the Interior will invest $39.1 million from the sale of public lands in Southern Nevada to fund more than 40 projects to improve recreation, reduce the risk of wildfires, conserve sensitive landscapes and restore important wildlife habitat throughout the state,” the press release opens.

Sally Jewell

The key is that a third of that money — $12.2 million — will be spent on “Environmentally Sensitive Land Acquisitions.”

Under the Southern Nevada Public Land Management Act of 1998 the feds must sell off 74,000 acres in Clark County for private and public development, half of which already has been sold or transferred.

But Interior plans use those funds to buy still more land and take it out off the tax rolls.

What do you bet the number of acres sold for urban development at the price of $39 million will allow the agency to buy an equal number, or greater, of acres in more rural settings?

James Q. Wilson, the Ronald Reagan Professor of Public Policy at the Pepperdine University, explains in “The Rise of the Bureaucratic State“:

By viewing bureaucracy as an inevitable (or, as some would put it, “functional”) aspect of society, we find ourselves attracted to theories that explain the growth of bureaucracy in terms of some inner dynamic to which all agencies respond and which makes all barely governable and scarcely tolerable. Bureaucracies grow, we are told, because of Parkinson’s Law: Work and personnel expand to consume the available resources. Bureaucracies behave, we believe, in accord with various other maxims, such as the Peter Principle: In hierarchical organizations, personnel are promoted up to that point at which their incompetence becomes manifest — hence, all important positions are held by incompetents. More elegant, if not essentially different, theories have been propounded by scholars. The tendency of all bureaus to expand is explained by William A. Niskanen by the assumption, derived from the theory of the firm, that “bureaucrats maximize the total budget of their bureau during their tenure” — hence, “all bureaus are too large.” What keeps them from being not merely too large but all-consuming is the fact that a bureau must deliver to some degree on its promised output, and if it consistently under delivers, its budget will be cut by unhappy legislators. But since measuring the output of a bureau is often difficult — indeed, even conceptualizing the output of the State Department is mind-boggling — the bureau has a great deal of freedom within which to seek the largest possible budget.

It spends that budget to accrue more power and a large dominion.

 

 

Judge sends Searchlight Wind farm project back to square one

A federal judge on Friday basically told the company that has been seeking to build a wind generation farm east of Searchlight and the federal land agencies trying to accommodate the project to start over and fix the flawed environmental analysis or abandon the project.

U.S. District Judge Miranda Du granted the plaintiffs’ request that Interior Department’s Record of Decision, Final Environmental Impact Statement, and the Biological Opinion be vacated because they fail to adequately address concerns about impacts on bald eagles, golden eagles, desert tortoises and migrating bats, but she refused to grant a permanent injunction.

Searchlight Wind, now a division of Apex Clean Energy, has been trying for at least seven years to gain government approval to place wind turbines on 19,000 acres of federal land — at the paltry price of $118 an acre — near Searchlight. The $300 million proposal was to erect 87 industrial-scale wind turbines that would be more than 400 feet tall and generate 200 megawatts of power.

Simulation of what windmills might look like east of Searchlight and near Lake Mohave, home to bald and golden eagle.

In her February order ordering Interior and Searchlight Wind review the project’s environmental impact, Judge Du pointed out the initial data used by the Bureau of Land Management found there were only three golden eagle nests within 10 miles of the proposed turbines. Subsequent surveys actually found 19 probable or confirmed golden eagle nests within five miles of the site, the judge wrote.

The BLM’s original study relied on data from Idaho. “In December 2012, however, researchers published a study addressing golden eagle home ranges and foraging distances in the Mojave Desert,” Judge Du writes. “The study shows larger home range sizes and foraging distances than those reported in the FEIS (Final Environmental Impact Statement). Taken together, this new information is sufficient to show significant environmental effects that Federal Defendants should consider in an SEIS (Supplemental Environmental Impact Statement).”

Du also told the BLM to re-evaluate its conclusions about the impact of the project on desert tortoises, especially the effects of blasting and noises of the turbines during operation.

In a press release at that time the conservation groups who filed the federal suit to block the project stated that a survey actually found 28 golden eagle nests within 10 miles of the project site and that a new study shows golden eagles in the Mojave Desert travel nearly 10 times as far from their nests to forage as previously thought.

The plaintiffs include Friends of Searchlight Desert and Mountains, Basin and Range Watch and individuals Judy Bundorf, Ellen Ross and Ronald Van Fleet Sr.

The original suit accused the Interior Department of acting in “a manner that is arbitrary, capricious, an abuse of discretion, and contrary to law.”

So far as I can find, the project has yet to find a buyer for the electricity the project proposes to produce. Without a contracted buyer it is questionable whether the company will find it practical to continue to sink money into a project that might never get approved due to the environmental hurdles.

But the government has 60 days to appeal, though there would be no point if Apex doesn’t have the wherewithal. Also the wind production tax credit expired at the end of 2014 and Congress has yet to extend it.

Judy Bundorf, the lead plaintiff in the case, reacted by saying:

I’m thrilled that the people who live in and around Searchlight won’t have to deal with the impact of such a huge construction project and the noise and flashing lights 24/7 for 25 or 30 years after the project is built.

Equally important, the untouched desert and variety of desert wildlife, including birds, mammals, and reptiles, not to mention Joshua tree forests, deserve to be protected.

Further, the proximity of the proposed wind project to Lake Mead National Recreation Area, Spirit Mountain, and numerous wilderness areas makes it unsuitable for large-scale industrial development of any kind.

Du’s Friday ruling: 13-616 Order Granting Vacatur 10-30-15

Du’s February ruling: Opinion_on_Summary_Judgment_2-3-15

 

Editorial: Nevada should control its land and not settle for paltry alms

Esmeralda County gets only 6 cents per acre in PILT money.

The silence is deafening.

Because so much of the West in general and Nevada in particular is controlled by the federal government and cannot be taxed, Congress four decades ago came up with a program called Payments in Lieu of Taxes (PILT). Each year about this time the U.S. government writes checks to counties to compensation for lost tax revenue.

A year ago Nevada’s Democratic Sen. Harry Reid issued a press release bragging about all the money Nevada was getting, pointing out that “Nevada’s PILT payments rose roughly $2.1 million from $23.3 million to $25.4 million.”

“PILT funding has a remarkable impact for Nevada counties,” said Reid a year ago. “Over 85 percent of the land in Nevada is owned by the federal government, making it essential that Nevada receive its fair share. These funds support rural communities across Nevada in funding high-quality education, law enforcement, and healthcare systems. I have worked hard to make sure that these crucial programs are fully-funded, and I am grateful that Congress was able to extend these provisions this year. I will work to ensure PILT is again funded for this upcoming fiscal year.”

This year no press release. Perhaps that’s because the Nevada checks this year amount to only $23.26 million, less than two years ago. Nationally PILT payouts are off by $32 million, down to $405 million from $437 million a year ago.

In a press release Interior Secretary Sally Jewell proclaimed, “PILT payments are critical for maintaining essential public services, such as firefighting and police protection, construction of public schools and roads, and search and rescue operations.”

The very next paragraph of the press release, without a hint of awareness of its miserly scope, reports that the “Interior Department collects about $14 billion in revenue annually from commercial activities on federal lands, such as oil and gas leasing, livestock grazing and timber harvesting,” and shares some royalties with the states.

So, the agency collects $14 billion from land that could well be held by the states, counties or private citizens and then magnanimously doles out less than 3 percent in PILT.

The state Legislature this year passed a bill urging Congress to turn over some of the federal land to the state.

A report from the Nevada Public Land Management Task Force noted that the BLM loses 91 cents an acre on land it controls, while the average income for the four states that have public trust land is $28.59 per acre. It also estimated the state could net $114 million by taking over just 4 million acres of BLM land, less than 10 percent. Taking over all 48 million acres could net the state more than $1.5 billion — nearly half the annual general fund budget.

Earlier this year Rep. Mark Amodei introduced H.R.1484 — Honor the Nevada Enabling Act of 1864 Act. The bill has been referred to the House Committee on Natural Resources, where its co-sponsor, Rep. Cresent Hardy, sits. The bill calls for transferring federal land to the state in phases. The initial phase would authorize the state to select no less than 7.2 million acres of public land for conveyance to Nevada.

In addition to being paltry the PILT checks are high inequitable, varying wildly in payment per acre from state to state and county to county.

Remember, Reid said it was “essential that Nevada receive its fair share.”

While Nevada will get 41 cents per acre this year, California this year will rake in 96 cents per acre, Arizona gets $1.13, New Mexico fetches $1.54 and Utah’s share is $1.05.

The calculations also account for population, which probably explains why tiny Esmeralda County here in Nevada nets 6 cents an acre, while Lyon gets $2.20 per acre and Washoe $1.07. Other county payments will be: White Pine, 41 cents; Elko 40 cents; Eureka, 15 cents; Lincoln, 12 cents; Lander, 26 cents; Mineral, 33 cents.

Reid has had time to send out press releases praising the Supreme Court for upholding ObamaCare and overturning anti-gay marriage laws and praising Homeland Defense for not detaining illegal alien families, but not PILT.

We urge our congressional delegation to move forward with legislation to turn federal land over to Nevada so the state taxpayers can profit from it instead of settling for paltry handouts.

A version of this editorial appears this past week in some of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel,  Sparks Tribune and the Lincoln County Record.

Editorial: Federal government’s fracking rules usurp states’ rights

Our masters in Washington are always searching for solutions to problems. They invariably find a solution even if they can’t find a problem.

The Interior Department recently released a 400-page set of rules for fracking on public lands, which covers about 87 percent of Nevada.

Sally Jewell

“Current federal well-drilling regulations are more than 30 years old and they simply have not kept pace with the technical complexities of today’s hydraulic fracturing operations,” said Interior Secretary Sally Jewell in a press release, completely ignoring the fact that hydraulic fracturing has been used in a majority of oil and natural gas wells since the 1940s. “This updated and strengthened rule provides a framework of safeguards and disclosure protocols that will allow for the continued responsible development of our federal oil and gas resources. As we continue to offer millions of acres of public lands for conventional and renewable energy production, it is absolutely critical the public have confidence that transparent and effective safety and environmental protections are in place.”

Also, she completely ignores the fact the states currently regulate fracking and there have been virtually no problems or water contamination associated with the process. Pay no heed to the fact the states maintain the power to regulate water within their boundaries or that the states maintain police powers over federal land within their boundaries.

Nope, they are from the federal government and they are coming to save the day with job killing, economy choking regulations such as:

• “Provisions for ensuring the protection of groundwater supplies by requiring a validation of well integrity and strong cement barriers between the wellbore and water zones through which the wellbore passes;
• “Increased transparency by requiring companies to publicly disclose chemicals used in hydraulic fracturing to the Bureau of Land Management through the website FracFocus, within 30 days of completing fracturing operations;
• “Higher standards for interim storage of recovered waste fluids from hydraulic fracturing to mitigate risks to air, water and wildlife …”

It took the U.S. government four years to come up with this 400-page usurpation of states’ rights.

Noble Energy drills in Elko County and fracked this well. (Noble Energy photo)

Less than a year ago, the Nevada Division of Minerals Administrator Rich Perry released Nevada’s 20-page revised rules that require groundwater testing before and after drilling, pressure testing of equipment, notifications to landowners before fracking begins and abiding by strict engineering standards — all of which cover the same ground as the federal rules, but took only a couple of months to draft and implement.

Redundancy from the bureaucracy.

The oil and gas industry immediately filed suit in Wyoming to block the federal rules, calling them “arbitrary and unnecessary burdens” for industry.

The Congressional Western Caucus criticized the new fracking rules, saying the process adds costly red tape and bureaucratic uncertainty to the oil and gas permitting process on federal lands.

“The Department of the Interior has yet to demonstrate why a federal hydraulic fracturing rule is even necessary in the first place with states already regulating the practice effectively within their borders,”said Caucus Chairman Cynthia Lummis of Wyoming. “This rule jeopardizes these efforts by forcing states to jump through bureaucratic hoops just to reclaim their authority to regulate drilling and wellhead activities that have been under their purview for decades. The federal government is the newcomer in this space, bringing nothing to the table except more red tape and more barriers to energy production on federal land that continues to lag far behind the energy boom on state and private lands. This rule disproportionately impacts the very western states whose energy reserves are a necessary ingredient to achieving lasting American energy security.”

Thomas Pyle, president of the Institute for Energy Research, said, “The Obama administration’s hydraulic fracturing rule is a solution in search of a problem.”

The federal bureaucrats should be forced by Congress or the courts to back off and let the states handle this.

Nevada Division of Minerals administrator Rich Perry talks about fracking rules established by the state. (Elko Daily Free Press photo)

A version of this editorial appears this week in the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel and the Lincoln County Record.