When the Department of Justice shut out New Mexico Congressman Steve Pearce from a ranchers-v-feds mediation last week, it was a startling snub to both state interests and congressional oversight. The executive branch does not get to use the chief law enforcement office to impose controversial endangered species rules on locals while excluding the very congressional authority that is charged with overseeing and fixing oppressive regulations.
In a feat of highly coincidental timing, as New Mexico fights this land grab the Department of Interior announced that it will designate 500,000 acres in New Mexico as monument and wilderness land with half of the acreage off limits to mechanized equipment. Both of these new challenges to state authority are set against the backdrop of a court fight over the state’s right to de-clutter federal forests that are a fire hazard.
New Mexico is fighting one front in the epic environmental battle to defend constitutional police powers reserved for the states. The flare-ups are most notably in Western states where an average of 50 percent of the land mass is federally controlled; the average for states like Utah, Alaska, and Nevada rises to seventy percent. According to state charters, the federal government promised to return public land that is described as multi-use but, after restoring the land in seven Eastern states, has refused to honor the agreements with Western states.
New Mexico’s current conflict involves 23 acres along the Agua Chiquita creek and natural springs, now fenced off for the benefit of the newly protected meadow jumping mouse. Cattle ranchers had naturally relied on access to this water since the area had been open to grazing permittees since 1957.
Seeds of this conflict stem from the Clinton era when grazing permits, once sufficient property interest to use as collateral for a bank loan, were discounted with Supreme Court affirmation from “preferred interest” status to simply a “permitted interest.” This and other regulatory amendments contained in sweeping 170 million-acre rangeland reforms by Secretary of the Interior Bruce Babbitt gave the federal government broad discretion over western grazing practices.
The New Mexico case is a prime example of how government discretion works. Even though the contest to keep close variations of the meadows jumping mouse on the endangered — or, “likely to become endangered” — list in parts of Colorado and Wyoming was fraught with decades of scientific controversy over whether the meadows jumping mouse was a “valid subspecies” or whether it really was vanishing, the feds decided that the increase of human populations in addition to “wildfire, drought, small population sizes, and modifications to habitat resulting from climate change” required government protection for the “foreseeable future throughout all of [the meadows jumping mouse’s] range.”
However, current research from the University of New Mexico challenges the core premise of government claims, concluding that “the lineage including the Preble’s meadow jumping mouse … [comes from] a single lineage that is ecologically indistinct and extends to the far north.” The study recommended that methods like “comprehensive sampling” would lead to “a radically different view of geographical structure within jumping mice” and would also indicate “the need to re-evaluate their taxonomy and management.”
Yet scrutiny of EPA determinations and analysis of competing findings is foreclosed by sweetheart deals between environmental advocacy groups and the EPA in “sue and settle” schemes. In a comprehensive report last year that exposed these court-validated deals, the Chamber of Commerce aptly described these negotiations as “regulating behind closed doors.”
The New Mexico meadows jumping mouse was just one of 251 species listed for Endangered Species Act protection in the 2011 In re Endangered Species Act Section 4 complaint by WildEarth Guardians. Whether or not all of the species were given protected status in this negotiation that included a deadline for findings on the meadows jumping mouse, the result is less important than the wholesale ability to sweep a vast number of heightened status appeals into one vehicle. The Chamber of Commerce report revealed that there have been 71 successful “sue and settle” negotiations from 2009 to 2012 that have resulted in more than 100 new federal rules, carrying estimated compliance costs of more than $100 million annually.
This collaboration between two friendly parties to co-opt the courts into bypassing constitutionally prescribed safeguards and protections denies local governments, harmed parties, and the public in general a seat at the table. It also leaves few avenues of protest. In the sue-and-settle context, it is clear that the feds added insult to injury when holding a self-described mediation hearing while audaciously barring the people’s federal representative. No wonder Otero County officials commented at the end of the session that they “were frustrated and disappointed by the inability of the USFS to work cooperatively in any meaningful way.”
Laying the groundwork for future cooperation, 64 environmental groups have just united to file a 112-page petition asking the EPA to study toxic air emissions from oil and gas operations – most fracking based. This petition was submitted by the public interest law firm Earthjustice, and it asks the EPA to use its Clean Air Act authority to develop “robust emission standards.”
Many in Texas have heard that the BLM is also engaging in an astonishingly wide revamp of regulations across 263 million acres in Oklahoma, Texas, and Kansas. The BLM is trying to tamp down concerns after Texans reacted angrily to news that 90,000 privately held acres along the Red River would presumably be identified through this process as federal land. BLM spokespersons are now describing the Resource Management Plan exercise as simply a “refresher” but the final report will reveal the true intentions.
If Americans are feeling helpless in the face of breathtaking conversions of land and access to federal control, there is something they can do. Six of the states that are still waiting for multi-use land to be returned by the feds are looking at contract-based strategies to pursue restoration of their public lands. Utah has passed the Return of Public Lands Act and has thus notified the federal government that it will sue for the land if not returned by the end of 2014. Join these states in the cause to restore control of lands not already declared wilderness, protected forest, or monument space. Consider how access to locked-up resources alone would cause North Dakota-style renaissances all over the West. Return of these public lands would deny the BLM jurisdiction over hundreds of thousands of acres in the West while returning decision-making and resource allocation to local and more accountable control.
Karen Lugo is Director of the Center for Tenth Amendment Action at the Texas Public Policy Foundation, a non-profit, free-market research institute based in Austin.
