Storm brews over Nevada drought actions

Cattle and Beef Industry News
May 26, 2014

— Voluntary... or else

Cows on the range in Nevada are in the Bureau of Land Management’s (BLM) sights once again. This time, the agency is making blanket claims of drought to justify grazing cuts in areas where grass is knee-high and stock water is plentiful. At print time, ranchers, elected officials, and supportive citizens were planning a gathering over Memorial Day weekend to rally in support of Nevada grazers. Livestock industry and county officials who planned to attend told WLJ that ranching families across the state are facing “arbitrary” and “vindictive” behavior from the BLM on its drought policies.

The rally comes after a May 17 gathering on a grazing allotment in northern Nevada, where ranching families who hold grazing rights were told they couldn’t turn out this year. That May 17 “grass tour” demonstrated to some 200 attendees just how much feed was available on the “Argenta” allotment proposed for closure—an abundant amount of forage, according to attendees interviewed.

The grass tour included speeches by elected officials from the state and county levels, attracted representatives from U.S. congressional offices, and generated media attention that seems to be snowballing. Since the event, a writer for Wall Street Journal visited the very rural Battle Mountain district. A story in that national forum may be forthcoming.

What is all this about? “What we’re seeing from BLM is arbitrary and capricious action at a high level that’s allowing for more arbitrary action on the parts of district managers in Nevada. It’s become very easy for them to make decisions that will put lots of ranchers out of business,” said Jake Tibbitts, who is the Eureka County, NV, Natural Resource Manager. “They’ve produced these ‘drought response plans’ in every district in the state that give district managers almost free rein to choose how they will respond to so-called ‘drought conditions.’ It’s already put ranches out of business, and the counties are trying to prevent more of that.”

Tibbitts said the drought plans blatantly misuse the U.S. Drought Monitor to make blanket declarations of drought in areas that are not actually droughty. “In Nevada, it’s all about the timing of the moisture. You can have a short rainfall year but a welltimed rain can bring on the forage. That’s what happened on the Argenta. Yet the BLM district manager there refuses to allow these families to turn out there. Instead, it’s highly likely to burn up.”

Rancher J.J. Goicoechea added that the “science” used to crack down on grazing in the drought plans was imbalanced and inaccurate. Goicoechea, who is the Eureka County Board of Commissioners Chairman and the Nevada Cattlemen’s Association (NCA) Past-President and public lands cochair, also told WLJ that BLM’s “science” in this case looks oddly familiar.

“It’s the same stuff they used in the ill-conceived sage-grouse regulations they drafted. That ‘science’ is actually going to cause more harm than good, by putting ranch families out of business. These ranges need to be grazed,” Goicoechea said. There is some momentum for a high-level legal challenge of that data, he said. “The idea to challenge under the Data Quality Act originated in Colorado, but Eureka County recently committed to involvement in that challenge, partly because of what we’re seeing here with the drought plans.” Meanwhile, he said, ranching families in Nevada have to fend off potentially ruinous decisions by their BLM district managers.

Such decisions are facing several families in the Battle Mountain BLM district, including the Filippinis, who have ranched there for five generations. Last year, BLM District Manager Doug Furtado issued a decision that shut Filippinis out of their North Buffalo and Copper Canyon allotments “for the remainder of the drought and one full grazing season.” These extended rest periods are provisions found in the drought plan. While the family was able to appeal, other provisions in the plan make it impossible for them to continue grazing during the appeal. They will have to wait months for a hearing that may or may not restore their ability to graze. Meanwhile, they have struggled to find alternative pasture and have had to sell some of their mother cows.

To make matters worse, Filippinis are now facing the loss of their third allotment: the Argenta allotment. According to Lynn Tomera, whose family also runs on the Argenta, they’d made a handshake agreement with the BLM range staff to “voluntarily” reduce their numbers on the allotment by 45 percent. Her family thought they “could survive it,” but it would be tough. She added that “voluntary agreement” was not quite the term for what they were faced with.

“It’s ‘voluntary—or else.’ They call it voluntary, because if you don’t take those cuts, they’ll write a decision on that allotment, based on the drought plan. That’s what they did to the neighbors to the west of us. Under a drought plan decision, that allotment is closed down until the U.S. Drought Monitor indicates there’s no more drought—plus you stay off an additional year to allow it to ‘recover.’” Tomera said that she and her husband and son had “agreed” to 45 percent cuts to their numbers in a handshake deal with the BLM range specialist. Mere hours later, he had called to retract the agreement.

“We left the office and came home, and he called a few hours later saying, ‘We have new data, and the allotment needs to be closed for the season.’ That was ‘new data’ he hadn’t had just a few hours earlier. So something definitely was decided by management. There would be no grazing allowed on the mountain, and we’d have to fence off our leased and private land if we wanted to graze on the flat.”

So, the Argenta was declared closed for the season—and then, the rains came. So did the feed. The Argenta allotment looked better than ever, said Tomera. The family hired an independent range consultant, who confirmed the range was in “normal” conditions and was producing plenty of feed. But Furtado wouldn’t budge. Tomera told WLJ that it was only when political pressure started getting applied that Furtado started coming around. The families started getting support from the county commissioners and state elected officials, the Nevada Cattlemen, Congressman Mark Amodei (R-NV) and Sen. Dean Heller (R-NV), and the public. The May 17 allotment tour, organized with the help of Elko County commissioners Grant Gerber and John Carpenter, made a big difference, Tomera said. Now, Furtado is coming to them with a new grazing “agreement” to allow grazing this summer. But is it more like an endrun?

“It has got some really, really tough language in it. They have these ‘trigger points’ based on the drought plan. They want a four-inch stubble on riparian areas, and just 30 percent usage on uplands. If we surpass these trigger points, we have to move the cattle to a different area—and have seven days to do that. At the end of the grazing season, if they were to determine that too many areas had exceeded their trigger points, we wouldn’t be able to use the allotment at all in 2015.”

According to Eddyann Filippini, the “agreement” Furtado is offering their families “sets us up for failure before we turn out a single cow.” She said that the triggers and the resulting grazing removals in the “agreement” were just like what’s found in the drought plan. Filippini told WLJ, “We won’t sign that agreement. We see ‘agreeing’ as just waiving our right to appeal a decision.”

Furtado has indicated that if the families don’t sign the agreement, he will not issue them a bill for the year or approve their permit— meaning if they turn out on the allotment, they will be in “trespass.”

The families on the Argenta allotment are still trying to work with BLM on a plan that looks less like “Russian roulette.” At press time, after prompting from Nevada Cattlemen’s Association leadership, the BLM state director had agreed to meet with the Battle Mountain ranching families to discuss solutions.

“We’re hoping for the best. BLM sort of has them over a barrel with these plans,” said NCA President Ron Torell. “The families either bend over backwards and sign an ‘agreement’ that could slowly kill them, or they face sudden death through a ‘full force and effect’ decision.”

Some might consider BLM’s actions a Fifth Amendment “taking” of private property, said Torell.

For example, the Argenta allotment is on “checkerboard land,” he said—meaning that private lands are interspersed with the BLM land. “So not only does this BLM closure shut down grazing private acres— when BLM burns, the private will burn up too. You could look at that as a ‘taking’ of your private property rights.”

According to Lynn Tomera, Furtado has paid little respect to their private property rights—or state law. When Tomeras brought up the point in a meeting that they held private water rights with appurtenant forage rights on the Argenta allotment, Furtado reportedly responded that, “The water laws are state laws, and we are federal. We don’t recognize state law.”

While the drought plans seem to allow—and possibly even promote—such treatment of state law and property rights, WLJ learned in a phone call to the Nevada BLM office that the agency considers those plans to be “reference documents” that can’t be appealed. Industry and the counties are considering their options, said rancher-commissioner Goicoechea. But, he added, these problematic drought plans are only a symptom of a systemic disease.

“We need to completely change how we manage these lands. We have to give a bigger piece of management decisions to state and local governments. I’m not saying we’re fully prepared to take over all BLM lands from federal management at this point—it would need to be gradual. But something big needs to change.”

People are growing frustrated to the point where civil disobedience may prevail, he said.

“More and more, I hear ‘Open the gates, turn them out.’ You’re going to see cows just getting turned out, and what can BLM do about it? It’s a big problem that, if ignored, will end badly for all of us.” — Theodora Dowling, WLJ Correspondent