Posted on 01/24/2002 3:36:30 PM PST by editor-surveyor
Ranchers win big in court
By Tom Jackson King, Managing Editor
It took a quarter of a million dollars and three years, but local rancher Jeff Menges and the Arizona Cattle Growers' Association have won a major ruling on how cattle grazing can occur on federal public lands in Arizona.
On Dec. 17, the Ninth Circuit Court in San Francisco ruled three to zero that the Bureau of Land Management and the U.S. Forest Service could not prohibit cattle grazing on public lands designated as "critical habitat" for endangered species, but where there is no sign any endangered species is currently living on the federal land.
"We're really pleased with the outcome of the ruling," Menges said in an exclusive interview with the Courier.
"I think the ruling narrows the scope of the ESA and when it can be applied. I think the Clinton administration had it way pulled to the left and this will help pull it back to the center," he said.
"They were implementing the ESA illegally. They were issuing incidental take statements when the species weren't even present," Menges said.
When someone uses federal land under permit, the federal agency is required to review the possible environmental impact and endangered species impact of the proposed use of public land. Agencies like BLM and USFS sometimes allow grazing on parcels subject to a finding of an "incidental take" or killing of an endangered species, subject to a promise of behavior changes by the allotment user.
"The take statements just kill you," Menges said. "The prescription can include cattle reduction or cattle removal. They said even though the species weren't present, they said you would be taking if the cattle were in the river even when no razorback suckers were present."
Menges said the ACGA's legal costs for pursuing two legal challenges, one against BLM and one against USFS, have been "between $200,000 and $250,000."
The ACGA challenged the federal interpretation of the Endangered Species Act because, according to Menges, it shut off access to about 400,000 acres of federal public land from cattle grazing. The cattle growers hope to recover most of their legal costs in challenging what Menges called an illegal interpretation of the ESA.
"Hopefully we can recover part of it. It would be from the Forest Service, BLM and U.S. Fish and Wildlife Service, the government agencies. We will go back to the courts and ask for our attorneys fees," he said.
Menges said he attended the Dec. 17 hearing in San Francisco where the unanimous decision was rendered.
"We think the ruling was right on with the law. We were really pleased with the reversal of the Cow Flat Allotment in Greenlee County, which belongs to Bill and Barbara Marks. There are loach minnows on part of that, but there wasn't any proof livestock would injure them," he said.
"They (the judges) said there has to be a causal connection, something that causes death or injury, before there is death or injury" under the Endangered Species Act.
Menges said the federal agencies were claiming an "incidental take" of endangered species -- meaning the death of protected animals -- because even though no such animals were present in the allotments, they might become present in the future, some of the land was designated as critical habitat for various fish species, and even upland cattle grazing might cause lowland problems by increased runoff and siltation into the Blue River, Eagle Creek and other waterways in southeastern Arizona.
That worry is what prompted the Southwest Center for Biological Diversity, based in Tucson, to file a lawsuit in 1997 against BLM and Forest Service claiming the agencies were not properly enforcing the Endangered Species Act in incidental take episodes. When the agencies revised their grazing allotment rules to consider hypothetical losses of protected species, Menges said ACGA filed its own court challenge.
"We felt we had no choice but to challenge it," he said.
Martin Taylor, coordinator of the grazing reform program for the Center for Biological Diversity, defended the agencies in their view that animals were harmed even when not present.
"The harm standard may make legal sense but it makes no biological or scientific sense because it demands pretty much to find a dead animal trampled by a cow to meet the standard," he said.
"The standard ignores the most important source of harm facing most endangered species, which is habitat degradation. Habitat loss need not kill animals directly. It usually prevents them from feeding or breeding at all. The very absence of a species from otherwise suitable habitat, to a biologist, is an indication of ongoing harm due to habitat degradation. Following the narrow legal standard, however, this is called "no effect,'" Taylor said.
"The Fish and Wildlife Service needs to focus its attention on critical habitat designation, for which the standard of harm is stronger and sounder biologically. The law requires agencies to avoid degradation of designated critical habitat. This should finally convince the service that endangered species need their critical habitat and they need it as soon as possible," he said.
William Civish, field manager for the Safford BLM Field Office, said more than a year ago that his agency has worked to control cattle impact on endangered species.
"Over the last 20 years, we've worked with the grazing community to move cattle out of the bottom and into the uplands (around the Gila Box Riparian Area). Ten of the ranchers who graze the riparian corridor have voluntarily removed their cattle out of the river bottom," Civish said.
Menges is the president of the ACGA. He raises about 500 head of cattle on giant ranches in Graham and Greenlee counties. Most of the grazing acreage he uses is leased from BLM.
He said grazing cattle on public land and saving endangered species are not mutually incompatible.
"If the law were implemented properly, 90 percent of the Endangered Species Act problems with cattlemen in the state would go away," he said.
ACGA's website is located at www.arizonabeef.org. CBD's website is located at www.biologicaldiversity.org.
Not to be bursting your bubble, but we probably have in excess of 10,000 red leg frogs on our property in Tuolumne county. - The lie is that they are in any way endangered. - Their populations are very cyclical, so there can be years when they are more sparse, and as the temperatures continue to fall dramatically, as they have for the last 7 years, there will be massive deaths of juvenile frogs during late spring snow fall, like last year.
There are many "bubbles". Yours has frogs. Up here in El Dorado county where this sillyness all started WE DON'T!
"We're really pleased with the outcome of the ruling," Menges said in an exclusive interview with the Courier. "I think the ruling narrows the scope of the ESA and when it can be applied. I think the Clinton administration had it way pulled to the left and this will help pull it back to the center," he said. "They were implementing the ESA illegally. They were issuing incidental take statements when the species weren't even present," Menges said.
Bump!
You are at the extreme northern limit of their range. - It may be that the cooling of our climate has moved their range farther south.
Jan. 4, 2001 - Top 10 stories of 2000 EID, asbestos, frogs, Blue Shield lead news
January 05, 2001
Jan. 4, 2001 - Top 10 stories of 2000 EID, asbestos, frogs, Blue Shield lead news
January 04, 2001
Jan. 4, 2001 - Top 10 stories of 2000 EID, asbestos, frogs, Blue Shield lead news
January 03, 2001
Jan. 4, 2001 - Top 10 stories of 2000 EID, asbestos, frogs, Blue Shield lead news
January 03, 2001
Dec. 27, 2000 - More time to comment on red-legged frogs
December 28, 2000
The California Red-Legged Frog made the threatened species list in May 1996. See story ³ More time to comment on red-legged frogs.²
December 28, 2000
The California Red-Legged Frog made the threatened species list in May 1996. See story ³ More time to comment on red-legged frogs.²
December 27, 2000
Dec. 27, 2000 - More time to comment on red-legged frogs
December 27, 2000
Dec. 21, 2000 - Frog plan overreaching
December 21, 2000
Dec. 4, 2000 - Plant recovery plan presented
December 11, 2000
Nov. 15, 2000 - Phony frog crisis
December 11, 2000
Dec. 4, 2000 - Plant recovery plan presented
December 4, 2000
Nov. 23, 2000 - Red-legged frog issues hop back onto EID agenda
November 26, 2000
Nov. 23, 2000 - Red-legged frog issues hop back onto EID agenda
November 26, 2000
Nov. 15, 2000 - Phony frog crisis
November 15, 2000
Oct. 30, 2000 - Frog thwarts Sundance development
October 30, 2000
Oct. 16, 2000 - County plants get $5 million
October 16, 2000
Oct. 13, 2000 - Straight talk sparse at candidate luncheon
October 13, 2000
Oct. 2, 2000 - Biologist labels red-legged
October 2, 2000
Sept. 20, 2000 - Feds eye 92,000 acres for frogs
September 20, 2000
Aug. 10, 2000 - Critique shows frog plan's faults
August 10, 2000
August 3, 2000 - Froggie plan has warts, Nutting says
August 3, 2000
July 28, 2000 - Wildlife Service looking for a few good frog lovers
July 28, 2000
July 26, 2000 - Dist. 2 supe hopping mad over frog plan
July 26, 2000
June 14, 2000 - Overpass done; trail being blazed
June 14, 2000
April 28, 2000 - Bob Springer: 3rd generation native recalls the early days
April 28, 2000
Living the wild life
April 5, 2000
March 30, 2000 - Feds OK EID's environmental plan for fix of Project 184
March 30, 2000
Feb. 25, 2000 - Measure Y could kill plans for Target, Mervyn's
February 25, 2000
Dec. 6, 1999 - Leona Warren found life in El Dorado County worth staying for
December 6, 1999
Aug. 13, 1999 - Frog back on the frying pan
August 16, 1999
Aug. 6, 1999 - 3-2 vote OKs frog confab
August 9, 1999
July 28, 1999 - Feds fret over bullfrogs, want marsh at Target site
August 9, 1999
July 28, 1999 - Feds fret over bullfrogs, want marsh at Target site
August 1, 1999
July 30, 1999 - Federal excess
August 1, 1999
Guess you've either forgotten or haven't been paying close attention. Don't you remember in about 1994, they (Greenfleece) were trying to outlaw clorine! They were gonna forbid us affluent from killing the effluent in our own danged hot tubs and spas!!!
By the way, this is quite a victory!(Grinning like a cat eating glue) Wonder what's been happening with Wayne Hage and his beautiful bride and former Congresswoman, the HONORABLE Helen Chenowith-Hage and their suit through the Federal Court of Claims over the way the USFS "took" him off the land in NV. Talk about a "taking!"
I used to be a contributor to their fine non-profit, Stewards of the Range, but lately I've had to borrow and invest in my own enterprise in order to pay the mortgage. This due in large part to taking 5 years out of my life to serve my country in local land-use political wars with the greenie-weenies disguised as commercial whitewater rafters.
By this time next year, I fully intend on being on the road to financial health so I can pitch in on some of these pitched battles.
"EVIL PREVAILS WHEN GOOD MEN DO NOTHING!" (I can't remember who said it first, but I really like this quote)
To be honest, while I was PO'd at clinton, I was also trying to keep my job and relocate back then. Take a look at part of my awakening.
As for the chlorine; there was a neighbor who actually tried to sue another because a severe windstorm had dropped a tree and crushed the sidewalls of the above-ground pool and swamping her greenhouse with her seedlings and prized flora. Back in '76, it got tossed. Today, she'd probably own his house!
Thank you for the ping.
Somebody oughta paste that up on the monument erected by the California Druids in downtown Placerville, CA, the county seat of Phil V's beloved El Dorado County. A county truly blessed and cursed simultaneously!!
This is all coordinated between www.sierranevadaalliance.org and www.greatvalley.org and has close ties to the State Treasurer as well as the ignomaneous Governor. I'd write a book about it but nobody really gives a spotted-owl hoot anyway, so I won't!
I doubt it. But, then, again, what do I know for sure?
Several years ago [February 10, 1998, UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT. Nos. 6-4498(L), (CR-95-390) "United States of America, Plaintiff - Appellee, versus James J. Wilson, Defendant - Appellant.], the 4th circuit ruled that a backyard puddle was not a "navigable waterway" under the act, and therefore the EPA and Army Corp of Engineers had no authority there.
The arrogant people of the EPA posted on their website that the would simply ignore this decision elsewhere in the country.
One of his most memorable statments was he didn't want to be know as a congressman for Oklahoma. He wanted to be known as congressman from Oklahoma.
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