Summer time pastimes; lawsuits and legislation

Jul 12, 2013

Though the summer isn’t the traditional “legislative season,” there are some bills and resolutions seeing some action, not to mention a constant stream of lawsuits which have, will, or might impact ranchers and agricultural producers of the West. Several groups opposed to public lands grazing are working on various forms of legislation which impact public lands and ranching and their activities—and they, as well as the focuses of their attention—are worth knowing about.

S. 258 and H.R. 657: These paired congressional bills are both titled The Grazing Improvement Act and were introduced by Sen. John Barrasso, R-WY, and Rep. Ral Labrador, R-ID, respectively. The bills seek to double the length of grazing leases from 10 to 20 years in some situations and to generally improve the “efficiency and stability of the federal lands grazing permit process,” according to the National Cattlemen’s Beef Association.

Ken Cole, Western Watershed Project’s (WWP) National Environmental Policy Act (NEPA) coordinator, called the act a danger to wildlife and to public interest, saying its passage would “hamper Western Watersheds Project’s capacity to change management of public lands,” and that it would “reduce the public’s ability to participate in the grazing permit renewal process and the associated environmental review.”

WWP, together with the Sierra Club, was recently in Washington during a lobbying event in Congress to “visit with House and Senate staff” regarding the “dangers” of the bills.

“In addition to these visits, WWP Public Policy Consultant Josh Osher continues to speak with public officials about the importance of our public lands for imperiled wildlife and the damaging effects of livestock grazing,” added Cole. He went on to say that WWP will continue those efforts later this month during another upcoming lobbying event.

Both bills were referred to committee in February of this year. The Senate version is still in committee and is considered to have a low likelihood of surviving it. The House version was reported on by the House Agriculture and House Natural Resources committee. The bills have almost unanimously Republican cosponsors with the exception of Rep. Jim Costa, D-CA, who cosponsors the House version.

H.R. 2201: Another bill WWP was on the Hill to lobby about was the Rural Economic Vitalization Act, a House bill sponsored by Rep. Adam Smith, D-WA. Instead of campaigning against it however, WWP was there to support it. If enacted, the bill would authorize “voluntary grazing permit retirement” on US- DA or Department of the Interior lands where “livestock grazing is impractical.”

Cole said the act “would provide authorization for grazing permit buyouts on federal public lands and allow a market-based solution for conflicts between livestock grazing and wildlife.”

The language of the bill claims that some holders of public lands grazing permits would be willing to “end their commercial livestock grazing on federal lands in exchange for compensation…” and suggests that doing so would be an effective way to “recapitalize an ailing sector of rural America” and help address environmental issues supposedly associated with grazing.

Under the bill, should someone choose to retire their grazing permit with the aforementioned compensation, that permit would be permanently removed and no grazing would be permitted on the property covered by the permit. Further, in retiring a permit, a permittee would be waiving any claim on whatever improvements they had made to the allotment.

The bill has 12 cosponsors, all Democrat, and was introduced and referred to committee in late May of this year. While the bill might make it out of committee, it is unlikely to be enacted, particularly as it is a reintroduction of a 112th Congress bill by the same name which died in committee.


It may not be the prime time for legislative activities, but every season is lawsuit season!

HSUS on horse slaughter: Following the late-June USDA approval of two horse processing facilities—Valley Meats of Roswell, NM, and Responsible Transportation of Sigourney, IA— the Human Society of the United States (HSUS) and several other groups and individuals filed suit. At the heart of the litigation is the claim USDA did not conduct the requisite environmental impact reviews in accordance with NEPA.

“Horse slaughter plants pollute local water bodies with blood and offal, permeate the air with a foul stench, diminish property values and put horses through misery,” said Jonathan Lovvorn, senior vice president and chief counsel for animal protection litigation at HSUS. “USDA’s decision to visit these horrors on the citizens of New Mexico, Missouri and Iowa—without even conducting an environmental review first—is irresponsible, and a clear violation of federal law.”

The litigative activities delayed USDA’s initially planned implementation of its decision.

PLF vs. CARB: The Pacific Legal Foundation (PLF) is challenging the California Air Resource Board (CARB) over a carbon credit bidding system that it calls an illegal tax under California’s Proposition 13. The proposition requires all new taxes to pass the California legislature with a two-thirds majority vote. The carbon credit auction, a form of “cap and trade” whereby carbon dioxide-emitting California businesses must bid for a limited amount of carbon credits, was instituted by CARB rather than by legislative vote.

“PLF’s lawsuit holds CARB’s feet to the fire because CARB cannot be allowed to siphon billions of dollars from California taxpayers in violation of the California Constitution,” said PLF Attorney Ted Hadzi-Antich.

“The California Constitution is crystal clear that new state taxes require at least two-thirds approval in both chambers of the Legislature,” said Hadzi- Antich. “The ‘cap and trade’ auction program is a new state tax that will generate billions of dollars of revenues for the state on the backs of California taxpayers. Because it was not passed by at least a twothirds majority vote of the legislature, it is unconstitutional. Case closed.”

Activity was originally started on the case in April of this year, but the opening brief wasn’t filed until early June. The hearing is scheduled for Aug. 28.

WWP on sage grouse: To add to its list of sage grouse-related lawsuits, WWP initiated a new lawsuit in mid-June over the Bureau of Land Management plan to reduce sage brush and juniper cover in Nevada. WWP claims the range treatments are to directly benefit the interests of public lands grazers, to which it is opposed, and will negatively impact sage grouse and other threatened species in the area.

CBD’s shrew suit: As a result of a Center for Biologic Diversity (CBD) lawsuit, the U.S. Fish and Wildlife Service designated 2,485 acres as critical habitat for the Buena Vista Lake ornate shrew on July 1. According to CBD, there were only 30 known individuals of this subspecies in existence in 2002. The Buena Vista Lake subspecies is one of nine of the ornate shrew species which is found in California, Baja California and Mexico.

CBD called the designation a tragic move, claiming it to be far too small and half of what had been suggested in prior attempts to designate critical habitat for the shrew. It claimed the shrew used to range across millions of acres in the central and southern riparian areas of California, but has been driven to near extinction because of the draining of wetlands.

Koontz Fifth Amendment case: In what is being called a victory for landowners everywhere, in late June, the Supreme Court ruled in favor of the property owner in the Koontz v. St. John’s River Water Management District Fifth Amendment takings case.

The case’s history goes back to Florida, where landowner Coy A. Koontz wanted to develop portions of his property for commercial use and sought a dredge and fill permit with the St. Johns Water Management District. St. John’s said it would grant the permit on the condition that Koontz place a conservation easement over his land, and spend money to improve public lands elsewhere in which Koontz had no interest or connection.

The permit was denied when Koontz refused the conditions. He then filed an inverse condemnation suit in circuit court under a state law permitting him to seek damages for the denied permit. He cited the legal precedent set by Supreme Court cases Nollan v. California Coastal Commission and Dolan v. Tigard. The circuit court sided with Koontz and awarded him compensation. This ruling was upheld by the court of appeals, but overturned by the Florida State Supreme Court which ruled that the Nollan and Dolan precedence only applied when permits with conditions were issued, rather than when they were denied.

In the recent ruling, the U.S. Supreme Court ruled that Nollan and Dolan precedence does apply in situations of permit denial.

The ruling came from a 4 to 5 vote of the justices.

“Today’s ruling says the Fifth Amendment protects landowners from government extortion, whether the extortion is for money or any other form of property,” said PLF Principal Attorney Paul J. Beard II.

“The ruling is a powerful victory for everybody’s constitutional property rights, from coast to coast,” Beard continued. “The Koontz family was challenging permit demands that were wildly excessive and had no connection to their land use proposal. Today, the court recognized that the Koontz family was the victim of an unconstitutional taking. The court’s message is clear: Government can’t turn the land use permitting process into an extortion machine.” — Kerry Halladay, WLJ Editor