A Taxpayer-Funded War Against Ranchers (PJM Exclusive)
Posted By Callie Gnatkowski On April 27, 2010 @ 12:03 am In . Feature 01, Uncategorized | 3 Comments
There is a war going on in the West. It has nothing to do with guns and bullets. It’s an environmental war, declared by eco-activists against farmers and ranchers who work the land.
It’s not covered by the mainstream media. But environmental groups boast that their aim is to run ranchers off their land, put them out of business, and bar beef and other food from our tables. And the environmentalists get taxpayers to pay them for their attempts at destruction.
The tools they use are the Endangered Species Act, the National Environmental Policy Act, and other acts, along with a small army of lawyers who find bureaucratic loopholes to bankrupt farmers and ranchers.
While ranchers struggle to pay attorneys to represent their interests in these lawsuits, environmental groups are getting paid by taxpayers. Even though the activists don’t win all of these cases, they are reimbursed for their attorneys’ fees through the Equal Access to Justice Act (EAJA). The abuse of EAJA, where environmental groups collect up to $650 per hour for frivolous lawsuits, was covered recently  by Pajamas Media.
“Essentially, these environmental groups are being paid to sue the federal government,” said Wyoming attorney Karen Budd-Falen. “They file hundreds of lawsuits, and rather than fight the suits, the government often settles the case, agreeing to pay attorneys fees in the settlement.”
Here are some of their cases.
Wyoming sheepman Carl Larson and his family continue the operation founded by his grandfather 100 years ago. The operation is made up of private and Bureau of Land Management (BLM) land, which the family pays to use and maintain. Because of the land ownership in their area, the BLM land is critical to the operation. When the activist group the Western Watersheds Projec t (WWP) filed a lawsuit that would have stopped grazing on the grazing allotment, based not on proof of damage to the land but on procedural issues with the permit, the family was forced to intervene.
“Losing this permit would have been devastating to our family and our livelihood,” Larson said. “We intervened because WWP had requested a stay of any grazing on the allotment until all litigation was completed, which would have effectively put our family ranch out of business.”
The WWP could not show any proof that the Larsons’ use of their land was causing any damage, so after several months the request for a stay on grazing was denied. The litigation is ongoing, and some problems were found with the BLM’s permit renewal procedures. “We have absolutely no control over the BLM’s processes, but have to live with the consequences and had to spend $35,000 to keep our ranch,” Larson said. “There is no way to get that money back from the WWP, even though for the short term, we beat them.”
In addition to the cost of the litigation, the Larsons have invested a lot of money over the years in improvements to the allotment including fences, water developments, and bridges. “If the allotment were closed, it would be a major taking of private property rights and my family would lose its business,” Larson said.
Jordan Valley, Oregon, rancher Rand Collins was also forced to intervene in a lawsuit filed by the WWP that would have eliminated the family business that has been in the family for 46 years. In 1997, the group sued the BLM to eliminate grazing on 68 grazing allotments, including Collins’ allotment. “All of these allotments, like mine, have been grazed by livestock for over 100 years. Like the Louse Canyon Community allotment for me, the use of these allotments is necessary for the continued existence of our ranchers and way of life,” Collins said.
The WWP lawsuit claimed that the BLM had not completed the necessary paperwork under the National Environmental Policy Act (NEPA) for permit renewal, and requested that livestock be removed until that paperwork was complete. While the court agreed that the BLM had violated NEPA, livestock were not removed, but the case is ongoing.
“WWP’s website boasts that it wants to eliminate my livelihood and family, but because it cannot challenge me directly, WWP and other groups find errors in the bureaucratic process as a backdoor way to harm my legitimate use of the land I have loved for 46 years,” Collins said.
“So many times, these cases are not filed on anything substantive, but on paperwork and missed deadlines,” Budd-Falen explained. “It’s all on paper — nothing in the lawsuit even impacts the environment.”
Ranchers like Tim Lequerica, based in Oregon’s Owyhee River valley, were assured that their historic operations would be protected when Congress gave the river near Lequerica’s home its Wild and Scenic designation in 1984. That was put to the test, however, by litigation filed in 1998 by the WWP and the activist Oregon Natural Desert Association (ONDA), which joined WWP challenging the BLM’s management plan for the wild and scenic river.
The litigation claimed that cattle should not be able to get water from the river and requested that grazing be stayed or eliminated pending the outcome of the litigation. The river was the ranchers’ only source of water. Ranchers intervened, arguing that they would keep cattle from drinking from the river if they were provided alternative water locations. “Our issue was not whether we had to use the Owyhee River, we just wanted a source of water for our thirsty livestock,” Lequerica said. “Our argument was that if the court would allow us to install water pipelines and tanks on dry BLM lands, we would be happy to keep cattle from drinking in the river as the environmentalists wanted. The environmentalists wanted no water at all, which would mean our cattle would go thirsty.”
The ranchers spent $42,000 to participate in the litigation, and in the end, the court granted the ranchers’ requests. The ranchers were able to put in new pipelines and tanks to provide water for both livestock and wildlife. “However, because the BLM failed to jump through some procedural hoops with regard to the written wild and scenic river management plan, the federal government voluntarily agreed to pay ONDA and WWP $128,000 in attorney fees and costs. Thus, my money paid for every part of the litigation,” Lequerica said. “I paid my personal attorneys to represent me; my tax dollars paid the federal government and their attorneys who failed to do all the paperwork correctly; and my tax dollars paid the ONDA and WWP to sue the federal government.”
Millions have been spent on the reintroduction of Mexican grey wolves into southwestern New Mexico and southeastern Arizona, which started in 1998 as the result of environmental activist groups suing the U.S. Fish & Wildlife Service (FWS). Today, very few wolves have survived in the wild, area wildlife is sparse, and livestock depredation is putting ranchers out of business. Since 2000, Gene and Ginger Whetten, of the Adobe Ranch in far southwestern New Mexico, have been living with dead and missing livestock, lost profits, and litigation caused by the wolves, and there’s no end in sight.
In 2007, the Whettens had nine wolves living right below the house, killing cattle every night. They estimate that they lost $100,000. “This year, we’ve found nine or ten dead calves, and pieces of 14 more. That doesn’t include those that you never see, that you just know are gone because a cow comes in with a tight bag,” Ginger Whetten said. “It’s been a big financial hit for us and an even bigger one for some of our neighbors who only run 50-100 head of cattle. When the wolves get in on them, it just wipes them out. It is heartbreaking to watch as they lose their livelihoods and way of life.”
Working and spending time together as a family brought the Whettens to the remote ranch, but much of that has been lost to the constant stress of the wolves. “The wolves are on our minds and on our property all the time. It’s not what we wanted for our family.”
To protect citizens like the Whettens, and others who feared for the safety of their families, Catron County, New Mexico, adopted an ordinance designed to give its citizens relief from wolves living in their front yards. “The federal government did not take any legal action against the county for the ordinance, and we felt we had a sworn duty to protect the health and safety of our citizens,” said Catron County Commission Chairman Ed Wehrheim. “The ordinance stated that if a wolf was harassing a person, the county would protect that person as allowed by the Endangered Species Act (ESA).”
In 2007, the radical activist group WildEarth Guardians (WEG) sued Catron County in federal district court claiming that the county ordinance violated the ESA. In the end, the court ruled in the county’s favor on all counts, and specifically held that the ordinance as written was lawful. Catron County spent over $100,000 in attorneys’ fees defending its ordinance. “Even though the suit was brought under the ESA, we cannot recover that money from the WildEarth Guardians,” Wehrheim said. “In contrast, they and other groups have filed countless suits against the government about the wolves, and are able to get their attorneys’ fees repaid.”
In another suit, the Western Watersheds Project (WWP) sued the FWS in 2001 to list slickspot peppergrass under the ESA. The FWS ultimately decided against listing the species as threatened or endangered, but agreed to pay the WWP $26,663 to reimburse their attorneys’ fees.
After this decision, a number of ranchers in the Mountain Home, Idaho, area, including Charlie Lyons and Ted Hoffman, came together with the state of Idaho to create a Candidate Conservation Agreement (CCA), which was approved by the FWS under the ESA. The agreement, which was signed by many ranchers, included specific, on-the-ground actions ranchers and landowners agreed to take to protect the species. According to a 2009 report, the slickspot peppergrass had the highest recorded population numbers. “We believe these population counts show the actions in the CCA were working and making a difference,” Lyons and Hoffman said.
In 2004, the WWP sued again to force a listing under the ESA, the court agreed, and the species was listed. In 2007, the FWS withdrew that decision, based on the protection given by the CCA. The WWP sued again, and won. Following that decision, the governor of Idaho filed a suit contesting the latest listing, and that litigation is ongoing.
Due to the litigation, the CCA is useless and the faith and hard work that the landowners and permittees put into management for the plant is down the drain. No one can show that this plant is any better protected by some legal federal paper designation than it was by true on-the-ground management, Lyons and Hoffman said.
Ranchers have spent $30,000 in litigation, plus time and effort developing the CCA, on this issue. The environmental group WWP has received a total of $238,163 in taxpayer money in settlement agreements on this species. “WWP’s objective is to run ranchers off the land in the spring,” Lyons and Hoffman said. “If they are successful in their efforts, it would mean a death sentence to the slickspot peppergrass and ruination of our ranches.”
Southwestern New Mexico rancher, farmer, and Catron County Commissioner Hugh B. McKeen has been battling environmental activist groups and the U.S. Forest Service (USFS) for years, just to keep the family operation, established by his grandfather in 1904, in business. Today, the family’s farmland is at risk of being washed away because of a lack of forest health work, and the family is ten years into a lawsuit against the USFS regarding punitive cuts to his grazing allotment.
Because the endangered loach minnow has been found in the San Francisco River, the McKeens are no longer allowed to use equipment to maintain the river and its channel. The river is now aimed directly at the McKeens’ private land irrigated field, and the USFS is requiring a National Environmental Policy Act (NEPA) analysis and Corps of Engineers permit before work can be done in the river. “They just don’t care,” McKeen said. “Part of my land has been destroyed — the floodplain is gone, so now the river is aimed right at my field.”
The problems with their grazing permit also involve the loach minnow. The activist groups the Center for Biological Diversity and the Forest Guardians (now known as WildEarth Guardians) filed a suit claiming that the USFS had not considered the impacts of grazing on two fish and a bird species and requesting that all livestock be removed from 42 allotments until the consultation process was completed. Ranchers intervened, spending about $100,000.
In the end, the court ruled that extra work would only be required on allotments where the fish are actually found. “Even though our attorneys stopped the groups from eliminating all grazing and then won most of the case on the merits, the federal agreement voluntarily agreed to pay the two groups $300,000 in tax dollars,” McKeen said.
The fish species were found on the McKeen’s allotment and private land, so the USFS built a fence to keep his cattle out of the river. Maintaining a fence along the river is difficult, and when the fence is down the cattle get in the river. In punishment, the USFS has cut the family’s grazing permit for 25 percent.
The McKeens suit against the agency has been ongoing for ten years. “Even if we win the suit, all I get are my cattle numbers back, no restitution, no compensation for lost income, nothing,” McKeen said. “They cut my numbers by 25 percent, reducing our income by 25 percent. No business can sustain that.”