Court should stop federal public land agencies from usurping our rights

Sometimes you have to fight fire with fire.

The agencies in charge of federal public land have developed a penchant for “sue and settle” — some friendly environmental group files suit to demand protection of some weed, bug, minnow or rodent and the agency compliantly settles.

The U.S. Fish and Wildlife Service did just this in 2011 settling with the WildEarth Guardians and the Center for Biological Diversity and agreeing to set up a schedule for listing or not listing 251 species under the Endangered Species Act (ESA). 

The deadline for the bi-state sage grouse in Northwestern Nevada was a couple of months ago. The deadline for listing the greater sage grouse, which live in most of the state, is set for September 2015, though a rider on a spending bill by Rep. Mark Amodei may delay that.

Fish and Wildlife listed the bi-state grouse as endangered, but backed off when its scientific data was challenged. Especially telling was that a Fish and Wildlife report found core populations of bi-state grouse had actually increased by between 120 and 144 percent.

A couple of weeks ago a coalition of public and private groups filed their own lawsuit in Nevada’s U.S. District Court challenging the legality of that 2011 court settlement.

The suit was filed by the Nevada Association of Counties, Nevada Mineral Resources Alliance, the American Exploration & Mining Association, and FIM Corp. – a family-owned million-acre sheep ranch in Northern Nevada.

To begin with, the suit points out that Fish and Wildlife agreed in the settlement to either list or not, entirely leaving out a third option required by the ESA — “listing is warranted but precluded because the species at issue has a lower listing priority as compared to other species.”

This error is compounded by the fact Fish and Wildlife has failed to follow the congressional requirement under the ESA that species that are candidates for listing must be re-evaluated once each year using the best scientific and commercial data. The agency in a letter from its regional office reported that it will not be completing this annual review because it is too busy implementing the lawsuit settlements.

The suit claims expensive efforts by the state and local governments to protect sage grouse habitat were ignored.

The lawsuit against Fish and Wildlife also argues that its settlements with the environmental groups violate the Due Process Clause of the Fifth Amendment because they bind nonparticipating third parties, in this case the plaintiff counties and businesses.

“The due process clause of the Fifth Amendment to the Constitution forbids

government practices and policies that violate precepts of fundamental fairness,” the suit says. “Here, FWS’s decision to forego a specific statutory provision, to the detriment of the Plaintiffs, denies Plaintiffs due process and is fundamentally unfair to Plaintiffs.”

The suit further accuses Fish and Wildlife of violating the constitutional requirement of separation of powers by binding the executive branch to settlement that transfers powers of Congress to special interest litigants.

The damages caused by listing of species are not vague and speculative. They are specific and calculable.

The FIM sheep ranch reports that the earlier listing of the Sierra Nevada Bighorn Sheep under the ESA has cost the operation approximately $400,000 per year since 2000, and it believes the listing of the sage grouse will cause similar or greater damage to its bottom line due to grazing prohibitions and other restrictions.

The courts should give this case its urgent attention to curtail further damage to the economy of Nevada.

Newspaper column: BLM seeks dismissal of suit over handling of wild horses, saying it is caught in the middle

Wild horses in corrals in Carson City (R-J photo by John Locher)

The Bureau of Land Management this past week filed a motion to dismiss a lawsuit brought against it in Nevada federal court over its failure to properly manage wild horses, as required by law, and letting the mustang population explode far beyond what the range is capable of handling.

The suit from the Nevada Association of Counties, the Nevada Farm Bureau Federation and others asks the court to issue an injunction or writ requiring federal agencies to follow the wild horse and burro law, because its current failure to do so is starving the very animals the law was intended to protect, damaging range land used for cattle grazing and taking private water rights, as reported in this week’s newspaper column, available online at The Ely Times, the Elko Daily Free Press and the Mesquite Local News.

“Free-roaming horse and burro herds in Nevada are frequently observed to be in malnourished condition, with the ribs and skeletal features of individual animals woefully on view and other signs of ill-health readily observable,” the suit says.

The BLM argues the suit is “nonjusticiable” because it fails to identify a single “final action” by the agency that caused damage, but rather asks the court to micromanage the BLM’s thousands of daily decisions about the management of feral horses — actually an invasive species with no natural predators and insatiable appetites.

But perhaps the court needs to play the role of Solomon and split this baby, because, as the BLM motion notes, the law clearly requires the BLM to maintain the feral horse population and destroy unadoptable excess wild horses, but the congressional budget specifically denies any funding for doing so.

The Wild Free-Roaming Horse and Burro Act of 1971 says, “The Secretary (of Interior) shall cause additional excess wild free roaming horses and burros for which an adoption demand by qualified individuals does not exist to be destroyed in the most humane and cost efficient manner possible.”

But this year’s budget, just as every budget since 2009, states, “Appropriations herein made shall not be available for the destruction of healthy, unadopted, wild horses and burros in the care of the Bureau or its contractors or for the sale of wild horses and burros that results in their destruction for processing into commercial products.”

The motion to dismiss suggests that the proper course for the plaintiffs is not through the courts “but through petitions to Congress and the Executive.” A fat lot of good it does to ask Harry Reid’s Congress to do anything. It is inert, inept and too often self-contradictory.

There are nearly 50,000 feral horses and burros on the open range in the West, nearly 50 percent more than the range can handle. About half those are in Nevada. Off the range, there are another 48,000 animals in either short-term corrals or long-term pastures, which the taxpayers are feeding for their average 25-year life span.

Oddly enough there are many news stories now about state and federal agencies battling an invasive species with no natural predators and insatiable appetites that is devastating businesses and recreational use of the Great Lakes. But there is no Wild and Free-Roaming Asian Carp Act.

Read the entire column at Ely, Elko or Mesquite.

BLM motion to dismiss

Wild Horse suit

Perhaps court needs to settle the contradictory directions of Congress concerning management of wild horses

Wild horses being warehoused at Palomino Valley near Reno. (Photo by Jo Mitchell)

Wild horses being warehoused at Palomino Valley near Reno. (Photo by Jo Mitchell)

The Bureau of Land Management today filed a motion to dismiss a lawsuit brought against it in Nevada federal court over its failure to properly manage wild horses as required by law.

The suit from the Nevada Association of Counties, the Nevada Farm Bureau Federation and others asks the court to issue an injunction or writ requiring federal agencies to follow the wild horse and burro law, because its current failure to do so is starving the very animals the law was intended to protect, damaging range land used for cattle grazing and taking private water rights.

The BLM argues the suit is nonjusticiable because it fails to identify a single final action by the agency that caused damage, but rather asks the court to micromanage the BLM’s thousands of daily decisions about the management of wild horses.

But perhaps the court needs to play the role of Solomon and split this baby, because, as the BLM motion notes, the law clearly requires the BLM to maintain the wild horse population and destroy unadoptable wild horses, but the congressional budget specifically denies any funding for doing so.

The Wild Free-Roaming Horse and Burro Act of 1971 says, “The Secretary (of Interior) shall cause additional excess wild free roaming horses and burros for which an adoption demand by qualified individuals does not exist to be destroyed in the most humane and cost efficient manner possible.”

But this year’s budget states, “Appropriations herein made shall not be available for the destruction of healthy, unadopted, wild horses and burros in the care of the Bureau or its contractors or for the sale of wild horses and burros that results in their destruction for processing into commercial products.”

“Specifically, Congress has decreased funding available to BLM for horse management – thereby limiting BLM’s capacity to remove excess horses – even as it has forbidden BLM from humanely destroying excess horses stored in BLM’s long-term holding faculties (facilities?),” the motion to dismiss whines. “Because BLM is obligated to care for these horses, funds available for range-management are even more limited than is readily apparent, and populations of wild horses have grown accordingly. Both federal and independent observers have noted that this population growth may strain resources located or dependant on public lands, including those in Nevada.”

The motion to dismiss suggests that the proper course for the plaintiffs is not through the courts “but through petitions to Congress and the Executive.” A lot of good it does to ask Harry Reid’s Congress to do anything. It is inert, inept and too often self contradictory.

There are about 40,000 wild horses and burros on the open range in the West, which exceeds by nearly 14,000 the number the range can handle. Off the range, there are more than 48,000 animals in either short-term corrals or long-term pastures, which the taxpayers are feeding for their average 25-year life span.

About half of the BLM’s horse and burro budget is spent on warehousing those 48,000 animals.

The motion to dismiss also challenges any Fifth Amendment “takings” claims due to the wild horses drinking privately owned water. “Of the courts that have considered whether damage to private property by protected wildlife constitutes a ‘taking,’ a clear majority have held that it does not and that the government thus does not owe compensation,” the BLM says.

There is clearly damage being done to Nevada range land and ranchers. They have a right to petition for redress of grievances, but to whom?

 

 

Newspaper column: BLM agents should follow the law on wild horses and not their bleeding hearts

Wild horses being warehoused at Palomino Valley near Reno. (Photo by Jo Mitchell)

Wild horses being warehoused at Palomino Valley near Reno. (Photo by Jo Mitchell)

When it comes to carrying out the instructions from Congress on the management of wild horses and burros under the Wild Free-Roaming Horses and Burros Act of 1971, the BLM is so bold and so brazen as to write on its own website that it doesn’t care one whit what the law says, as recounted in this week’s newspaper column, available online at The Ely Times and the Elko Daily Free Press.

Under a section of its website labeled Myths and Facts the BLM denies that it is selling or sending wild horses to slaughter:

“Fact: This charge is absolutely false. The Department of the Interior and the Bureau of Land Management care deeply about the well-being of wild horses, both on and off the range, and it has been and remains the policy of the BLM not to sell or send wild horses or burros to slaughter. Consequently, as the Government Accountability Office noted in a report issued in October 2008, the BLM is not in compliance with a December 2004 amendment (the so-called Burns Amendment to the 1971 Wild Free-Roaming Horses and Burros Act) that directs the Bureau to sell excess horses or burros ‘without limitation’ to any willing buyer.”

In another “Fact” the agency admits there are 14,000 too many horses currently roaming the West.

These are just two of the myriad misdeeds by the federal land management agency revealed in a recent federal lawsuit filed by the Nevada Association of Counties and the Nevada Farm Bureau Federation against the Department of Interior, the BLM, Secretary of the Interior Sally Jewell and others.

The suit asks the court to issue an injunction or writ requiring federal agencies to follow the wild horse and burro law, because its current failure to do so is starving the very animals the law was intended to protect.

“Free-roaming horse and burro herds in Nevada are frequently observed to be in malnourished condition, with the ribs and skeletal features of individual animals woefully on view and other signs of ill-health readily observable,” the suit says.

The federal agencies often claim that their ability to properly maintain the population of wild horses and burros is hampered by a lack of funds. The suit calls this a “self-inflicted handicap,” because half of the BLM’s horse and burro budget is going to warehousing those 50,000 animals, which can live for 25 to 30 years.

Anne Novak, executive director of Protect Mustangs, told The Associated Press, “The plaintiffs have an arrogant sense of entitlement. I’m grateful the American public will see how the plaintiffs allegedly intend on denying native wild horses the right to water and are requesting BLM destroy the majority of the roundup survivors. Their lawsuit will rally more voters to fight for wild horses to remain wild and free for future generations.

If that is the case, perhaps the law should be amended rather than ignored by those paid to enforce the law.

The suit: Wild horse suit in pdf format

Read the entire column at Ely or Elko.