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DuBois column: A review of lawsuits on livestock grazing
NM Stockman ^
| 1/01/2020
| Frank DuBois
Posted on 01/15/2020 10:21:52 AM PST by cowpoke
A review of lawsuits on livestock grazing
Hammond grazing permits
On December 20 of 2019, federal judge Michael H. Simon revoked the grazing permit for Hammond Ranches Inc., finding that former Interior Secretary Ryan Zinkes order renewing it earlier this year was an abuse of discretion.''
Background: The Hammonds had 4 different grazing permits on BLM lands. In June of 2012 Steve and Dwight Hammond were convicted of intentionally setting fires on BLM land. On Oct. 30, 2012 federal judge Michael. H. Hogan sentenced Steve Hammond to 12 months and one day of imprisonment and 3 years of supervised release, and Dwight Hammond to 3 months of imprisonment and 3 years of supervised release. The government appealed, saying the sentences didnt meet the 5 year minimum sentences mandated under a federal anti-terrorism law. The ninth circuit agreed with the feds, and on Oct 7, 2015 the district court resentenced the Hammonds. On February 14, 2011 the BLM denied the Hammonds request to renew their grazing permits and declared their preference was revoked because the federal criminal convictions rendered them no longer in compliance with BLM regulations or the terms and conditions of their permit. The Hammonds appealed the decision, but in April of 2014 the Office of Hearings and Appeals denied the request for a stay and on November 23, 2016 the Interior Board of Land Appeals affirmed the denial of a stay. On July 10, 2018, President Trump issued an Executive Order of Clemency pardoning Dwight and Steven Hammond for their crimes and commuting their sentences. On December 26, 2018 Interior Secretary Zinke exercised his authority to assume jurisdiction over the case and on January 2, 2020 issued his decision to remand the case back to the BLM with instructions to renew the permits under the same terms and conditions as had previously applied. Western Watersheds Project, Center for Biological Diversity and WildEarth Guardians then filed a suit alleging the Secretarys order and the issuing of the permit violated FLPMA and its underlying regulations, and NEPA and the Administrative Procedures Act (APA). A Temporary Restraining Order was issued allowing partial renewal of the permits until the court could make a final determination on the merits of the case. (Whew! And believe me folks, I left a bunch of stuff out.)
The Decision: The court found 1. Secretary Zinkes failure to analyze and make a required finding that the Hammonds had a satisfactory record of performance violates the APA and was arbitrary and capricious, inconsistent with the governing statutes and regulations, not rationally connected to the facts before the agency, and an unexplained change in agency practice and procedure. 2. Secretary Zinke expressly stated that he found no fault with the BLMs 2014 Findings of Fact that the Hammonds had engaged in significant violative conduct and that the pardons had no effect on the underlying conduct (both conduct that resulted in the underlying convictions, and conduct that did not result in any convictions) and even if Secretary Zinke had explained why relying on the post-permit conduct of the pardons was permissible in this case, he did not provide any reasoned analysis that had a rational basis in the facts in the record for granting the Permit and thus a violation of the APA.
Basically, the court considered the seriousness of the Secretarys errors and granted just about everything the enviros wanted.
Why did Zinke wait for over five months after the pardons to assume jurisdiction over the case? That would have given ample time to prepare the appropriate legal and environmental documents. Why the rush to do this his last week in office?
Ranchers in northern and southern New Mexico have suffered as a result of Zinkes incompetence, and now that incompetence has created additional hardships on the Hammond family. Zinke managed to negate the great victory many felt when President Trump issued the pardons, and turn it into ashes as he walked out the door.
Horseshoe Grazing Permit
On June 19, 2019 the BLM issued a final decision renewing the grazing permit for this allotment and authorizing a number of new range improvement projects. This IBLA opinion overturns that decision by granting a stay of the decision.
Background: This allotment is located in Yavapai County, Arizona and is situated within the Agua Fria National Monument. The Allotment consists of just under 30,000 acres of BLM land, 200 acres of private land, and has been separated into eleven pastures. The Arizona Game Fish Dept. acquired the headquarters of the Horseshoe Allotment in 2011 and in 2012 leased the ranch to J.H. Cattle Company and grazing resumed on the allotment. An interdisciplinary team from the BLM prepared an EA, with the proposed action being to continue grazing at the previous levels and identifying eleven specific range improvement projects. The BLM also determined the action would not have a significant impact on the environment and that an EIS was not warranted. The final decision was issued on June 20, 2019. The Western Watershed Project filed an appeal and stay petition alleging violations of - guess what FLPMA, NEPA and the APA.
IBLA Decision: 1. While BLM may be able to provide additional evidence or argument in support of its decision to not analyze noxious weeds or the hydrological impacts of new wells on riparian areas in the EA, it has not done so as part of the pending stay petition. 2. Given the significant questions surrounding the adequacy of the EAs analysis and the harms that will ensue from the immediate construction of such a large number of range projects, the public interest favors a stay of the Final Decision so that BLMs decision-making process can be fairly and deliberately investigated to ensure compliance with the applicable statutes and regulations.
Why walk you through all this? I can think of no better way to describe the labyrinth of rules and procedures required to graze livestock on federal lands. Labyrinth is defined as a complicated irregular network of passages or paths in which it is difficult to find one's way; a maze, and I believe accurately describes the current, sorry situation in which ranchers and agency personnel find themselves..
They are both playing with a deck of cards dealt by Congress, and until Congress reshuffles the deck by providing meaningful amendments to the statutes concerned, the game is rigged in favor of those who seek to curtail or eliminate livestock grazing.
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
An internet version of the column is here.
Due to the publisher's deadline, this column was written on the same day the Hammond decision came down. Since then, Carrie Stedheim, writing for the Fence Post, has interviewed Steve Hammond and others, and presented a broader look at the decision. See Judge to Hammonds: No more grazing
TOPICS: Agriculture; Business/Economy; Outdoors
KEYWORDS: 9thcircuit; 9thcircus; clownbammyjudge; hammondfamily; judiciary; livestockgrazing; michaelhsimon; ninthcircuit; ninthcircus; obamajudge; politicaljudiciary
1
posted on
01/15/2020 10:21:52 AM PST
by
cowpoke
To: cowpoke
2
posted on
01/15/2020 10:26:35 AM PST
by
cowpoke
To: cowpoke
3
posted on
01/15/2020 10:28:47 AM PST
by
cowpoke
To: cowpoke
Judge appointed by the Kenyanesian Usurper.
That’s going to be the longest lasting negative consequence of ignoring the Constitution.
4
posted on
01/15/2020 10:30:54 AM PST
by
Lurkinanloomin
(Natural Born Citizens Are Born Here of Citizen Parents_Know Islam, No Peace-No Islam, Know Peace)
To: Lurkinanloomin; cowpoke
Yep, this partisan Democrat "judge" is a ClownBammy "judge", making a "ruling" for The Resistance.
Another injustice from the Reign of Error of Æthelblack the Unready.
5
posted on
01/15/2020 10:52:16 AM PST
by
kiryandil
(Chris Wallace: Because someone has to drive the Clown Car)
To: cowpoke
Why did Zinke wait for over five months after the pardons to assume jurisdiction over the case? That would have given ample time to prepare the appropriate legal and environmental documents. Why the rush to do this his last week in office? Ranchers in northern and southern New Mexico have suffered as a result of Zinkes incompetence, and now that incompetence has created additional hardships on the Hammond family.
The writer doesn't seem to understand that the Political Judiciary arrives at a "decision", then crafts the "ruling" to fit the foregone outcome.
This is what Zerobama's hand-picked Resistance "judge" did.
In a real Judiciary, the ruling is arrived at from the law and precedent.
Zinke could have burned the midnight oil for months on this issue.
The outcome would have been the same - it was in the hands of a partisan Democrat 0bama "judge".
6
posted on
01/15/2020 10:57:36 AM PST
by
kiryandil
(Chris Wallace: Because someone has to drive the Clown Car)
To: kiryandil
As a Reagan appointee to the Dept. of Interior, I fully understand the partisan judiciary. But I also know Zinke could have made it much harder for the judge to reach the decision he did, and in fact, and could have limited the impact of a negative decision.
7
posted on
01/15/2020 11:13:07 AM PST
by
cowpoke
To: cowpoke
But I also know Zinke could have made it much harder for the judge to reach the decision he did, and in fact, and could have limited the impact of a negative decision.Thanks for the insight!
Not sure what exactly Zinke was up to before he bailed.
Wonder if a former Navy SEAL commander would be up to navigating the bureaucratic Swamp maze?
8
posted on
01/15/2020 12:03:37 PM PST
by
kiryandil
(Chris Wallace: Because someone has to drive the Clown Car)
To: kiryandil
Sorry for the late response. Been at the dentist's office all afternoon and now I have two fewer teeth.
Almost from the beginning, I haven't been a fan of Zinke. It all started
with his hat, then he screwed us in NM on the monument review and did just what the enviros & Senators Udall and Heinrich wanted. Then he proposed reorganizing Interior along the lines enviros had been proposing for years. Then there was his Secretarial Order promoting migration routes. I'll stop there, but we certainly deserved better under Trump.
9
posted on
01/15/2020 5:17:31 PM PST
by
cowpoke
To: cowpoke
Yeah, that hat thing is a little odd.
I like cowboys - but I'll never wear a cowboy hat or boots.
Not part of my gear, and never has been. Looks like Zinke has a similar level of comfort...
We need more "ratings posts" on Trump's key people - perhaps that would identify which ones have been co-opted early by The Swamp.
10
posted on
01/15/2020 5:50:03 PM PST
by
kiryandil
(Chris Wallace: Because someone has to drive the Clown Car)
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