[House Hearing, 113 Congress]
[From the U.S. Government Publishing Office]
THREATS, INTIMIDATION AND BULLYING BY FEDERAL LAND MANAGING AGENCIES,
PART II
=======================================================================
OVERSIGHT HEARING
before the
SUBCOMMITTEE ON PUBLIC LANDS
AND ENVIRONMENTAL REGULATION
of the
COMMITTEE ON NATURAL RESOURCES
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED THIRTEENTH CONGRESS
SECOND SESSION
__________
Thursday, July 24, 2014
__________
Serial No. 113-82
__________
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COMMITTEE ON NATURAL RESOURCES
DOC HASTINGS, WA, Chairman
PETER A. DeFAZIO, OR, Ranking Democratic Member
Don Young, AK Eni F. H. Faleomavaega, AS
Louie Gohmert, TX Frank Pallone, Jr., NJ
Rob Bishop, UT Grace F. Napolitano, CA
Doug Lamborn, CO Rush Holt, NJ
Robert J. Wittman, VA Raul M. Grijalva, AZ
Paul C. Broun, GA Madeleine Z. Bordallo, GU
John Fleming, LA Jim Costa, CA
Tom McClintock, CA Gregorio Kilili Camacho Sablan,
Glenn Thompson, PA CNMI
Cynthia M. Lummis, WY Niki Tsongas, MA
Dan Benishek, MI Pedro R. Pierluisi, PR
Jeff Duncan, SC Colleen W. Hanabusa, HI
Scott R. Tipton, CO Tony Cardenas, CA
Paul A. Gosar, AZ Jared Huffman, CA
Raul R. Labrador, ID Raul Ruiz, CA
Steve Southerland, II, FL Carol Shea-Porter, NH
Bill Flores, TX Alan S. Lowenthal, CA
Jon Runyan, NJ Joe Garcia, FL
Markwayne Mullin, OK Matt Cartwright, PA
Steve Daines, MT Katherine M. Clark, MA
Kevin Cramer, ND Vacancy
Doug LaMalfa, CA
Jason T. Smith, MO
Vance M. McAllister, LA
Bradley Byrne, AL
Todd Young, Chief of Staff
Lisa Pittman, Chief Legislative Counsel
Penny Dodge, Democratic Staff Director
David Watkins, Democratic Chief Counsel
------
SUBCOMMITTEE ON PUBLIC LANDS AND ENVIRONMENTAL REGULATION
ROB BISHOP, UT, Chairman
RAUL M. GRIJALVA, AZ, Ranking Democratic Member
Don Young, AK Niki Tsongas, MA
Louie Gohmert, TX Rush Holt, NJ
Doug Lamborn, CO Madeleine Z. Bordallo, GU
Paul C. Broun, GA Gregorio Kilili Camacho Sablan,
Tom McClintock, CA CNMI
Cynthia M. Lummis, WY Pedro R. Pierluisi, PR
Scott R. Tipton, CO Colleen W. Hanabusa, HI
Raul R. Labrador, ID Carol Shea-Porter, NH
Steve Daines, MT Joe Garcia, FL
Kevin Cramer, ND Matt Cartwright, PA
Doug LaMalfa, CA Jared Huffman, CA
Jason T. Smith, MO Vacancy
Vance M. McAllister, LA Peter A. DeFazio, OR, ex officio
Doc Hastings, WA, ex officio
------
CONTENTS
----------
Page
Hearing held on Thursday, July 24, 2014.......................... 1
Statement of Members:
Grijalva, Hon. Raul, a Representative in Congress from the
State of New Mexico........................................ 2
LaMalfa, Hon. Douglas, a Representative in Congress from the
State of California........................................ 1
Pearce, Hon. Steve, a Representative in Congress from the
State of New Mexico........................................ 5
Prepared statement of.................................... 6
Statement of Witnesses:
Dunn, Blair, Attorney, Albuquerque, New Mexico............... 39
Prepared statement of.................................... 41
Gerber, Grant A., Esq., Commissioner, Elko County, Nevada.... 17
Prepared statement of.................................... 18
Lopez, Jose Varela, New Mexico Cattle Growers' Association,
Santa Fe, New Mexico....................................... 44
Prepared statement of.................................... 46
Lucero, Mike, Rancher, Jemez Pueble, New Mexico.............. 58
Prepared statement of.................................... 59
Perkins, James D., Sheriff, Garfield County, Utah............ 8
Prepared statement of.................................... 9
Pollock, Leland, Commissioner, Garfield County, Utah......... 12
Prepared statement of.................................... 14
Rardin, Hon. Ronny, Commissioner, Otero County, New Mexico... 35
Prepared statement of.................................... 37
VeneKlasen, Garrett O., Executive Director, New Mexico
Wildlife Federation, Santa Fe, New Mexico.................. 52
Prepared statement of.................................... 53
Additional Materials Submitted for the Record:
Cox, Spencer J., Lieutenant Governor, State of Utah, July 17,
2014, Letter submitted for the record...................... 71
Johnson, Buster D., Supervisor District III, Mohave County
Board of Supervisors, Lake Havasu City, Arizona, July 19,
2014, Letter submitted for the record...................... 73
Kortlander, Christopher, Founding Director, Custer
Battlefield Museum, Garryowen, Montana, July 22, 2014,
Letter submitted for the record............................ 73
List of documents submitted for the record retained in the
Committee's official files................................. 75
Parkin, Drew O., Escalante, Utah, Prepared statement of...... 69
Reyes, Sean D., Attorney General, State of Utah, July 23,
2014, Letter submitted for the record...................... 72
OVERSIGHT HEARING ON THREATS, INTIMIDATION AND BULLYING BY FEDERAL LAND
MANAGING AGENCIES, PART II
----------
Thursday, July 24, 2014
U.S. House of Representatives
Subcommittee on Public Lands and Environmental Regulation
Committee on Natural Resources
Washington, DC
----------
The subcommittee met, pursuant to notice, at 2:05 p.m., in
room 1324, Longworth House Office Building, Hon. Doug LaMalfa
presiding.
Present: Representatives McClintock, Lummis, Tipton,
LaMalfa; Grijalva, and Garcia.
Also Present: Representatives Pearce and Stewart.
Mr. LaMalfa. The subcommittee will come to order. The
Chairman notes the presence of a quorum.
Under Committee Rule 4(f), opening statements are limited
to the Chairman and Ranking Member of the Subcommittee so that
we can quickly hear from our witnesses in time today. However,
I ask unanimous consent to include any other Members' opening
statements in the hearing record if submitted to the Clerk by
close of business today. Hearing no objection, so ordered.
I will also ask unanimous consent that Members not on the
subcommittee or the full committee be allowed to sit at the
dais and take part in the proceedings. Without objection, so
ordered.
STATEMENT OF HON. DOUGLAS LaMALFA, A REPRESENTATIVE IN CONGRESS
FROM THE STATE OF CALIFORNIA
Mr. LaMalfa. Today we have Part II in our oversight series
on, ``Threats, Intimidation, and Bullying by Federal Land
Management Agencies.'' During Part I of the hearing, the
committee heard firsthand accounts of mistreatment by the hands
of Federal officials seeking to extort the witnesses into
relinquishing their property rights. In the case of one of the
witnesses, the Supreme Court, in Wilkie v. Robbins, said
Congress has not provided victims of Federal bullying a legal
recourse to seek a remedy for damages.
In Part II of this hearing, we will hear other accounts of
mistreatment of American citizens who have been subjected to
abusive behaviors by Federal officials. These firsthand
accounts, like those examined in Part I, will give the victims
of abusive conduct by a Federal land managing official a chance
to tell their story to Congress.
Their testimony will show that status quo agency oversight
policies and procedures are inadequate for addressing or
deterring employee abuses, and may instead embolden
overreaching or malicious employee behavior, with little risk
of retribution for their actions.
In many cases, citizens who refuse to surrender their
constitutional rights have been subject to a pattern and
practice of threats and intimidation. Government agencies,
through individual and collective efforts, are actively using
land designations and restrictions, prompted mainly by radical
environmental groups, to curtail multiple use on Federal lands.
State and local governments have been subjected to threats,
lack of cooperation, and numerous unfair or heavy-handed
tactics, which threaten public safety and threaten the
livelihoods of communities, especially those in public land
states. These actions are creating unnecessary tension with
individual citizens, state and local units of government, and
even local law enforcement.
Congressional oversight and legislative solutions are
necessary to provide an effective check on Federal officials
who abuse their regulatory powers. Today's hearing will
continue the committee's work to fashion a legislative solution
that will give targets of abuse by Federal land management
employees the opportunity to seek a just remedy.
I am eager to hear the panel of witnesses today, and I hope
Members on both sides of the aisle will listen to their
accounts of what happened to them so we can work together in
fashioning our remedy to these abuses.
I would like now to turn it over to our Ranking Member, Mr.
Grijalva, for his opening statement.
STATEMENT OF HON. RAUL GRIJALVA, A REPRESENTATIVE IN CONGRESS
FROM THE STATE OF NEW MEXICO
Mr. Grijalva. Thank you, Mr. Chairman. I also want to thank
Chairman Bishop for holding this hearing today. As was stated,
this is our second hearing on intimidation and bullying by
Federal land management agencies. But I do not think anyone in
this room wants to simply point fingers or make an unfounded
accusation. The issue should be improving relationships, and
that improvement is a two-way street that requires dialog and
partnership, not name-calling and disengagement.
Unfortunately, like the first hearing on this subject, the
administration was not invited to testify. We will not be able
to hear their perspective or have them respond directly to the
witnesses in order to find solutions and common ground. Their
presence would have made this a much more useful hearing and
better use of this committee's time.
Instead, this afternoon will be an echo chamber of
complaints and hand-wringing. We will hear testimony on the
range of issues, from the Endangered Species Act to accusations
that the BLM is turning southern Utah into a police state.
However, I would also like to say that all Federal
employees, regardless of rank and position, should have and
should uphold a high standard of professionalism to provide the
best possible service to the public, and I think we could all
agree that the vast majority act in a professional and
courteous manner. Unfortunately, like any company,
organization, or government, there will be instances where
employees do not live up to that standard, and they must be
held accountable.
Today's hearing will be an opportunity to hear from
individuals who have grievances with the Federal land managers
and law enforcement personnel. As we hear from today's
witnesses, I think it is important to remember that these
incidents should not be seen as a reflection of all the public
land management agencies and their employees.
Today's witnesses will describe disputes they have had with
BLM and the Forest Service over grazing permits, water rights,
and law enforcement, among other issues. Keep in mind, BLM
administers 18,000 grazing permits and less 155 million acres,
and the Forest Service administers nearly 8,000 grazing permits
on roughly 90 million acres, the vast majority of which are
managed without complaints or incidents.
It is the responsibility of the Federal land managing
agencies and their employees to protect the land that is the
property of the entire American people. With such a broad
directive, the opinions on how to do so are endless.
In some of these cases, disagreement in policy is perceived
as overreach of authority, and the land managers who, under
law, carry out the policies are considered threatening and
bullying. It is important to see these examples for what they
are, a matter of difference in policy opinion, and we must not
lose sight of that.
Mr. Chairman, thank you, and with that I yield back the
balance of my time.
Mr. LaMalfa. Thank you, Mr. Grijalva.
We will now hear from our panel of witnesses, but at this
time I would like to yield to the gentleman from Utah, Mr.
Stewart, who would like to make some introductions of them.
Mr. Stewart. Thank you, Mr. Chairman. I appreciate the
opportunity to sit before your committee for at least part of a
day. I am on the Appropriations Committee now, but I am on the
Interior Subcommittee, and these issues are very, very dear to
me. And I think they are really important, and this hearing is
very important. So thank you for that.
I would like to introduce two of your panelists today, who
happen to be not only from the State of Utah but from my
District, and in addition to introducing them, maybe make a
brief comment on the topic of the hearing.
First, I am pleased to introduce Sheriff James D. Perkins,
or as his friends call him, Danny. Sheriff Perkins has been in
service to Garfield County for a total of 27 years in law
enforcement. He was a deputy for more than 20 years, and was
then chosen to serve as the Sheriff of Garfield County in
January of 2007, and he has continued to serve Garfield County
as sheriff ever since.
Sheriff Perkins is actively involved in the drug task
force, and strives to keep drugs out of Garfield County. And
Danny is devoted to the people of the community, there is no
question about that.
I would also like to introduce a good friend, Commissioner
Leland Pollock, who has been a Commissioner of Garfield County
for the last 3 years. He and I have known each other for about
that amount of time, and I have not met anyone in my role in
Congress who has impressed me more.
It has been my pleasure to work with him closely on a
number of different issues since coming to Congress, and he is
a genuine public servant who puts first the specific needs of
his constituents in what are really some of the most rural
parts of our Nation.
He understands the impacts of Federal ownership on land and
how that can affect real people in his community, and he is
committed to finding solutions to improve the lives of the
people in Garfield County as those who come to visit this very,
very beautiful part of the state.
Then, Mr. Chairman, if I could divert just briefly and talk
a little bit about the subject at hand that the committee has
chosen to hold this hearing. I feel like it is a timely and
very important topic.
If you would refer to the slides, and I show you these
slides, at first glance you might look at those and think,
well, that is some scene from some war zone, maybe Afghanistan
or Iraq or something similar to that. But actually, that is not
true. Those are Interior Department agency employees, and those
pictures were actually taken in the western United States
within the last 6 months or so.
I have been disturbed over the past several months as I
have learned more and more about the level of militarization
occurring within many Federal agencies, and I mean almost every
Federal agency, but also, unfortunately, including Department
of the Interior agencies.
When I see agents with helmets, with shields, with hard-
plated body armor, with grenades, and in some cases grenade
launchers and M4 carbines, my assumption is that they are
military or possibly with the Department of Justice. As it
turns out, the National Park Service has a number of what they
call special event tactical teams, and they look an awful lot
like what we would consider SWAT teams. There are also BLM
officers with a surprising amount of firepower.
I recognize that officers need to be able to protect
themselves, and in some cases they are in very rural and lonely
parts of the state or of the Nation, and they need to be able
to protect themselves in situations that may be unpredictable.
And I want them to be able to protect themselves.
But what concerns me is when you see these type of very
heavy-handed SWAT-like teams, with non-DOJ agencies being used
as the tip of the spear for Federal law enforcement. I am not
sure that having these teams scattered across dozens of Federal
agencies is the most efficient use of resources. I think it is
heavy-handed, it is intimidating to the American people, and I
think it harms the sense of trust that is so important to be
established between American citizens and the Federal
Government.
I have introduced a bill to address some of these concerns.
If the Interior agencies have SWAT teams or SET teams or
whatever they might be called, we ought to know of their
existence and have a better justification from the agencies for
why they are necessary and when and how they are used. And I am
hopeful that this committee hearing will help cast some light
on that.
With that, I thank our witnesses for being with us today.
And Mr. Chairman, I yield back my time.
Mr. LaMalfa. Thank you to the gentleman from Utah.
Also, I would like to introduce the third member of this
panel today. Please take the dais as your name is called. It is
Mr. Grant Gerber, a Commissioner from Elko County, Nevada. So
welcome, sir. Thank you for joining the panel.
I would also like to pause here for a moment before we
start with testimony. Our colleague, the gentleman from New
Mexico, Mr. Pearce, would like to acknowledge and make
introductions of the second panel. You will remain where you
are until the first panel is finished, but Mr. Pearce is on a
limited time frame.
So I would ask unanimous consent for the committee to do
so.
Mr. Pearce.
STATEMENT OF HON. STEVE PEARCE, A REPRESENTATIVE IN CONGRESS
FROM THE STATE OF NEW MEXICO
Mr. Pearce. Thank you, Chairman LaMalfa and Ranking Member
Grijalva, members of the subcommittee. I appreciate your
holding this hearing today on Federal agencies which intimidate
and bully private citizens. I asked the Natural Resources
Committee in May of this year to conduct a hearing on this
topic as it relates to Otero County, New Mexico, which is in my
District.
I appreciate the subcommittee looking into the issues as
well as inviting the people on the ground who deal with the
Forest Service every day. I am proud to call Otero County
Commissioner Ronny Rardin a personal friend.
I would also like to thank Jose Varela Lopez of the New
Mexico Cattle Growers' Association, Attorney Blair Dunn, and
Mike Lucero, all for making the journey all the way from the
Land of Enchantment to the Nation's capital for today's
hearing. Our National Forests are real treasures to the people
of New Mexico. We in southern New Mexico know conservation
better than any outside special interest group or bureaucrats
in Washington.
However, in recent years we have seen a sharp downturn for
the worse from Federal land management agencies. Balance is no
longer the order of the day, but instead, agencies look to
implement a narrow special interest-led agenda. BLM is slow-
walking oil and gas drilling applications. The Forest Service
only puts up minimal acreage for necessary thinning projects.
Grazing is improperly stopped because of faulty science. Public
access to public lands and resources is being cut off.
The situation in Otero County began this spring, when the
U.S. Forest Service began construction of a pipe fence that
directly impacted the water rights of ranchers in the Agua
Chiquita riparian area of the Lincoln National Forest. This was
done to maintain the habitat of the meadow jumping mouse before
the mouse was even listed as endangered.
The Service claimed that the construction of this fence
would not impact the ranch owners who own the water because
their cattle can move through two small fence openings. Imagine
trying to herd a large number of cattle through a 10-foot-wide
opening in a fence. Bureaucrats and special interest groups
treat that as a solution. I believe it is a shell game.
Had the Forest Service actually consulted with the Office
of the State Engineer, the agency which oversees water rights
in New Mexico, the Forest Service would have learned what my
office learned within 24 hours of contacting the State
Engineer: the Goss family has adjudicated water rights in the
Agua Chiquita dating back to the 1880s. The fact that an agency
would make the claim that water rights do not exist when they
clearly do is an example of the Federal Government's arrogance
and attempt to bully our local ranchers into submission.
The Forest Service also claims to accommodate ranchers by
saying that the trenches near the Agua Chiquita allow water to
flow under the fences. New Mexico, like much of the West, has
been in a drought since 2011, and water does not flow through
these trenches unless a heavy downpour occurs.
The New Mexico State Supreme Court has ruled that an
individual with water rights has the ability to move the water
to the cattle through trenches or pipelines, yet the Forest
Service refuses to allow the pipeline.
The Court of Federal Claims sided with the Goss family in a
similar case 4 years ago. The actions of the Forest Service
have made it nearly impossible to move the water to the cattle,
violating the law and violating the findings of two different
courts.
Despite the bullying by the Federal Government, the county
attempted to mediate this dispute with the U.S. Attorney's
Office. When my office asked to attend this meeting for our
constituents, the U.S. Attorney and the Forest Service
threatened to cancel it, leaving one to wonder why an elected
official is being excluded.
At this meeting, the Forest Service and U.S. Attorney
refused to compromise. They would not even agree to not lock
the gates on the fence until the issue could be discussed more
thoroughly and resolved.
I am afraid that this is only the opening salvo from
Federal agencies attempting to further restrict access to water
and other vital resources in the West. The Environmental
Protection Agency is attempting to regulate virtually every
ditch in the United States under the Clean Water Act.
The Forest Service believes it has a right to regulate
ground water it does not own, including ground water underneath
lands it does not own, as well as the power to review state
water rights applications. The arrogance and the bullying by
Federal agencies must stop. This is not some theoretical
argument. It is about our culture in the West and our
livelihood. It is about the economy of southern New Mexico and
other western states.
Chairman LaMalfa, Ranking Member Grijalva, and members of
the subcommittee, I would like to once again thank you for
allowing me to speak here on this issue today. I look forward
to reading the testimony, and I have a more complete statement
that I would like to submit for the record, with unanimous
consent.
[The prepared statement of Mr. Pearce follows:]
Prepared Statement of Hon. Steve Pearce, a Representative in Congress
from the State of New Mexico
Chairman Bishop, Ranking Member Grijalva, members of the
subcommittee: thank you for conducting this hearing today on Federal
agencies' intimidation and bullying tactics of private citizens. I
asked the Natural Resources Committee in May to conduct a hearing on
this topic as it relates to Otero County, New Mexico. I appreciate the
subcommittee looking into these issues, as well as inviting the people
on the ground who deal with the Forest Service every day. I am proud to
call Otero County Commissioner Ronnie Rardin a personal friend. I'd
also like to thank Jose Varela Lopez of the New Mexico Cattle Growers'
Association, Attorney Blair Dunn and Rancher Mike Lucero for making the
journey all the way from the Land of Enchantment to our Nation's
capital for today's hearing.
Our National Forests are a real treasure to the people of New
Mexico. We in southern New Mexico know conservation better than any
outside special interest group or bureaucrats in Washington. Sportsmen
require access to public lands to hunt and fish. Tourists need the
ability to move their vehicles along roads, and recreational
enthusiasts must be able to bring boats and OHVs to truly enjoy
everything that our forests have to offer. And our ranchers, often
surrounded by Federal lands and checkerboarding, require rights of way
and grazing permits that they pay for. Allowing such varied forms of
access helps to achieve the necessary balance that protects our lands
and economic interests.
However, in recent years, we've seen a sharp turn for the worse
from Federal land management agencies. Balance is not the order of the
day, but instead agencies look to implement a narrow special interest-
led agenda. BLM is slow-walking oil and gas drilling applications. The
Forest Service only puts up minimal acreage for necessary thinning
projects. Grazing is abruptly stopped because of faulty science. Public
access to public lands and resources is being cut off.
The situation in Otero County began this spring when the U.S.
Forest Service began construction of a pipe fence that directly
impacted the water rights of ranchers in the Agua Chiquita riparian
area of the Lincoln National Forest. This was done to maintain the
habitat of the meadow jumping mouse--before the mouse was even listed
as endangered. The Service claims that the construction of this fence
would not impact ranchers who own the water because their cattle can
move through two small fence openings. Imagine trying to herd a large
number of cattle through a 10 foot-wide opening in a fence. Bureaucrats
and interest groups treat that as a solution--I believe it's a shell
game.
Had the Forest Service actually consulted the Office of the State
Engineer, the agency which oversees water rights in New Mexico, the
Forest Service would have learned what my office learned within 24
hours of contacting the State Engineer: the Goss family has adjudicated
water rights in the Agua Chiquita dating back to the 1880s. The fact
that an agency would make the claim that water rights do not exist when
they clearly do is an example of the Federal Government's arrogance and
an attempt to bully our local ranchers into submission.
The Forest Service also claims to accommodate ranchers by saying
that trenches near the Agua Chiquita allow water to flow under the
fences. New Mexico has been in a drought since 2011, and water does not
flow through these trenches unless a heavy downpour occurs. The New
Mexico State Supreme Court has ruled that an individual with water
rights has the ability to move the water to their cattle. The Court of
Federal Claims sided with the Goss ranch in a similar case 4 years ago.
The actions of the Forest Service have made it nearly impossible to
move the water to the cattle, violating state law.
Despite the bullying by the Federal Government, the county
attempted to mediate this dispute with the U.S. Attorney's Office. When
my office asked to attend this meeting, the U.S. Attorney and Forest
Service threatened to cancel it, leaving one to wonder why an elected
official is being excluded. At this meeting, the Forest Service and
U.S. Attorney refused to compromise. They would not even agree to not
lock the gates on the fence until this issue could be discussed more
thoroughly, and resolved.
I am afraid that this is only the opening salvo from Federal
agencies attempting to further restrict access to water and other vital
resources in the West. The Environmental Protection Agency is
attempting to regulate virtually every ditch in the United States under
the Clean Water Act. The Forest Service believes it has the right to
regulate groundwater it does not own, including groundwater underneath
lands it does not own, as well as the power to review state water
rights applications. The arrogance and bullying by Federal agencies
must stop.
This is not some theoretical argument. This is about our culture
and livelihood. This is about the economy of southern New Mexico and
the West as a whole.
Chairman Bishop, Ranking Member Grijalva and members of the
subcommittee, I would like to once again thank you for holding this
hearing today. The legislative branch exists in part to conduct
oversight of executive agencies. It is time to exercise that power, and
rein them in.
______
Mr. LaMalfa. Thank you, Mr. Pearce. We appreciate having
you here today.
Let's proceed, then. We have our three witnesses from the
first panel in place. Like all of our witnesses, your written
testimony will appear in the full hearing record, so for this
portion I ask that you keep your oral statement to 5 minutes.
And that will be governed, of course, by the green light, the
yellow, and then finally the red. Things get pretty heated with
the red, so we ask that you adhere to that, much like a
stoplight.
So with that, first up we will have Sheriff Perkins.
STATEMENT OF JAMES D. PERKINS, SHERIFF, GARFIELD COUNTY, UTAH
Sheriff Perkins. Thank you. I would like to thank Chairman
Bishop, Ranking Member Grijalva, and the members of the
subcommittee. Thank you for inviting me to testify in this
oversight hearing.
I am James D. Perkins, Jr., Sheriff of Garfield County,
Utah. In my more than 27 years of law enforcement experience, I
have worked closely with many different Federal law enforcement
agencies. I would like to focus today on what I see as a
system-wide failure by the Bureau of Land Management law
enforcement to accomplish its mission.
If we had time, I could talk all afternoon, giving you
example after example of problems I have experienced with BLM
law enforcement. My written testimony includes nine examples
that will give this subcommittee an idea of some of the
difficulties we face. And I would like to talk today about
three examples in particular.
But before I begin, I want to make sure that you understand
that I absolutely recognize the critical role that Federal law
enforcement agencies play in my county. Garfield County is more
than 85 times the size of the District of Columbia. About 93
percent of our county is managed by the BLM, Forest Service,
and National Park Service. So coordinating with each other is
not optional.
We have a long record of working hand-in-hand with Federal
agencies, like the FBI, the DEA, Immigration and Customs
Enforcement, the Forest Service, and the National Park Service.
I am proud of the many successful operations and investigations
we have done jointly. We may not agree on everything, but we
work together for one main reason: our relationships are based
upon mutual respect. And that is where BLM law enforcement has
been different.
My first example shows exactly how BLM law enforcement
views our relationship. While I was attending a drug task force
meeting in Cedar City, Utah, a BLM law enforcement officer told
me point blank that he really did not care about any authority
that I had as the Garfield County Sheriff. He told me that he
did not feel like he had to coordinate anything through my
office. His statement left me speechless. This attitude of lack
of respect, which I find reaches through many levels of BLM law
enforcement, is what I believe is the cause of the problem.
Another example of attitude happened during a search and
rescue operation. We received a call that a party was overdue,
and a search and rescue team needed to be sent. In these kinds
of life-and-death emergencies, time is of the essence, and we
need as much help as we can get to locate the vehicle to give
us a starting point for the search.
I asked one of the dispatchers to call the BLM law
enforcement officer that is located in the middle of our county
to help in the search. The frustrated dispatcher told me,
``Sheriff, it is a waste of time. If he will answer the phone
or we do get in touch with him, all he is going to tell us he
is off duty or he is out of hours.''
My last example involves a complaint I received from a BLM
field manager located in Escalante, Utah. On the night before
the elk hunt was open, a BLM law enforcement officer posted
``Road Closed'' signs on a road that was actually open to the
public. The BLM field manager received complaints about the
illegal road closures, and he went to the area and started to
remove the ``Road Closed'' signs.
The BLM law enforcement officer confronted the field
manager and threatened to arrest him. He even stepped back and
placed his hand on his service weapon. The field manager told
me that he felt like his life was in danger.
These examples are not isolated incidents. They happen all
the time, and not only in Garfield County. I have included in
my written statement letters from the Western States Sheriffs
Association, Utah Sheriffs, and Nevada State Sheriffs to be
included in the official record.
Years ago we had similar problems with the Forest Service
law enforcement, but we were able to resolve them. Dave
Ferrell, the Director of Law Enforcement for the Forest Service
based here in Washington, took the time to come to Garfield
County personally and meet with me. Our discussion resulted in
both a change in attitude and personnel, and the problems have
resolved themselves.
I am confident that we could do the same with the BLM if we
had the chance. Until then, BLM law enforcement will continue
to cause problems for the Sheriff's Office, first responders,
residents, visitors, and the local economy.
Again, I appreciate the opportunity to testify before you
today, and I will be happy to answer any questions.
[The prepared statement of Sheriff Perkins follows:]
Prepared Statement of Sheriff James D. Perkins Jr., Garfield County,
Utah
Thank you Chairman Bishop, Ranking Member Grijalva, and members of
the subcommittee for this opportunity to testify in this oversight
hearing. My name is James D. Perkins, Jr., Sheriff of Garfield County,
Utah. I have worked in law enforcement for more than 27 years and have
significant experience in working with many different Federal law
enforcement agencies. I would like to focus my testimony today on what
I see as a system-wide failure by the Bureau of Land Management (BLM)
law enforcement to accomplish its mission.
If we had the time, I could take all afternoon giving the
subcommittee example after example of problems that I have experienced
with BLM law enforcement and its lack of coordination with local law
enforcement. I've included several examples in this testimony that will
give the subcommittee an idea of some of the difficulties that BLM law
enforcement has created for Garfield County--examples that affect not
only the Sheriff's Office, but also our first responders, residents,
and visitors.
need and history of local and federal law enforcement coordination in
garfield county
Before I begin, I would like to give you some background on
Garfield County to explain why coordinating law enforcement activities
with Federal agencies is so critical. Garfield County is more than 85
times the size of the District of Columbia. Including me, the Sheriff's
Office employs only six full-time deputies across the county to cover
more than 3.3 million acres. Our law enforcement activities on public
lands create a significant strain on our manpower and resources as we
routinely are required to conduct emergency search and rescue
operations and narcotic interdictions. We are often required to enlist
the help of local volunteers, state police, and multi-county task force
personnel.
Our law enforcement mission is made significantly more difficult
because of the composition of the land ownership in our county and the
number of people from home and around the world that come to see the
beautiful landscape. About 93 percent of the area within Garfield
County is managed by Federal agencies. We are home to three national
parks, the Glen Canyon National Recreational Area, Dixie National
Forest, and the Grand Staircase-Escalante National Monument. Combined,
these areas receive more than 1.5 million visitors each year. With this
number of people and overlapping jurisdictions, coordinating with
Federal agencies is not optional.
Accordingly, we have a long record of working hand-in-hand with
Federal agencies like the Federal Bureau of Investigation (FBI), the
Drug Enforcement Administration (DEA), Immigration and Customs
Enforcement (ICE), the Forest Service, and the National Park Service. I
am proud of the many successful joint operations and investigations
that we have done. I have battled the Mexican Cartel as they moved
their illegal marijuana growing operations into my county. I have
worked with the FBI on a kidnapping case where I arrested the suspect
in my jurisdiction. I have worked alongside DEA and FBI agents on an
attempted assassination case where one of our local Adult Probation and
Parole Officers was the target. While exercising a search warrant on
this investigation, one of the suspects was shot. Because of the
coordinated efforts of all the agencies involved, including Federal
agencies, no law enforcement officers were injured during this
operation.
As these examples show, I absolutely recognize the critical role
that Federal law enforcement agencies play in my county. While we do
not agree on everything, we are able to work together because our
relationships are based on mutual respect. I respect the role of each
of these agencies to enforce Federal law within their jurisdictions,
and they respect my role as sheriff and the chief state law enforcement
officer of the county.
Notably absent from these examples is any joint work with law
enforcement from the BLM. It's because there is none. And that is what
I want to focus on today, because I see this lack of coordination--
rather, their refusal to coordinate--as a system-wide failure that
needs to urgently be addressed.
lack of coordination and inappropriate behaviors of blm law enforcement
BLM's attitude toward coordinating with local law enforcement is
summed up best by a conversation I had with a BLM law enforcement
officer while we were attending a drug task force meeting in Cedar
City, Utah. He told me point blank that he really didn't care about any
authority that I thought I had as the Garfield County Sheriff, and that
he did not feel like he had to coordinate anything through my office.
This statement left me speechless at the time, and, in my experience,
it is representative of the lack of respect that BLM law enforcement
has for local law enforcement. This lack of respect and choice to
ignore the Garfield County Sheriff's Office makes my job significantly
more difficult because the BLM is the largest land manager in Garfield
County.
This refusal to coordinate, coupled with a lack of any meaningful
oversight, has created a perfect environment where the abuse of Federal
law enforcement powers can occur. We have had complaints of BLM law
enforcement stopping people under the pretext of enforcing state law,
and they have refused to provide me with documentation of their
authority or jurisdiction to do so. They have detained people
completely outside of BLM's jurisdiction on land managed by the Forest
Service, illegally closed roads, and interfered with county emergency
medical technicians, wasting time and resources. Local residents and
visitors who feel they have been wronged by BLM law enforcement have
little recourse but to come talk to me. The following examples are from
a cross-section of these complaints, and I can assure that they are not
isolated incidents. They happen all the time, and not only in Garfield
County. I would note that the first is from a complaint that I
received, not from a visitor or resident, but rather from a local BLM
field manager.
I received a complaint from a BLM field manager located in
Escalante, Utah. On the night before the mule deer hunt was to open, a
BLM Law Enforcement Officer posted road closed signs on roads that were
actually open to the public The BLM field manager received complaints
about the illegal road closures so he went to the area to investigate
and remove the signs. The BLM law enforcement officer confronted the
field manager as he was removing the signs and threatened to arrest
him. The BLM Law Enforcement Officer stepped back and placed his hand
on his duty weapon. The BLM Field Manager stated that he felt like his
life was in danger.
Several visitors to Garfield County told me that they
would never return because of the way they were treated by
BLM law enforcement. These tourists were visiting the Grand
Staircase-Escalante National Monument and wanted to see a
rock formation that was off the road. They parked their
motorcycles off the roadway, within the county right-of-
way, which is perfectly legal. When they returned, they
were met by a BLM law enforcement officer, who threatened
them with a citation and the impoundment of their bikes for
not leaving them in the roadway.
I have received complaints from citizens that live in
Escalante, Utah. They reported that while they were on
Forest Service property, a BLM law enforcement officer
pulled them over for no apparent reason. The officer
questioned them about what they were doing and they felt
like they were being bullied. I contacted the District
Forest Service Ranger in charge of the area and asked him
if he had requested that the BLM law enforcement patrol on
Forest Service property. He advised me that he had not and
that he was also upset because he had received other
complaints of similar activity. I contacted the BLM
sergeant in law enforcement that is responsible for this
area. This sergeant made excuses for the BLM law
enforcement officer's actions and stated that they would
get back to me. The sergeant eventually got back with me
and advised me that the alleged allegations had taken place
prior to her attaining the rank of sergeant, therefore they
would not investigate. This didn't make any sense to me but
that was the answer they provided.
Garfield County Emergency Medical Service Director, Tammy
Barton, reported to me that on three different occasions, a
BLM law enforcement officer showed up on the scene of
medical and search and rescue emergencies. The BLM officer
refused to check in or sign the sign in sheet at the
Incident Command, as is normal protocol. He took it upon
himself to walk through the scene where an airplane
accident was located within a State of Utah right of way.
On another occasion, it was required to carry a patient out
of a remote area to a landing zone where a medical
helicopter could land to pick up this patient. The Incident
Commander knew that carrying out the patient would take
several hours. The BLM officer demanded that a helicopter
be called immediately. Not only did the BLM officer again
refuse to check in with the Incident Command, but he also
took it upon himself to dispatch a helicopter to the scene
after being told by the Incident Commander to wait until
the patient could be carried out and was closer to the
landing zone area. The medical helicopter arrived at the
landing zone and sat there idling for approximately 4
hours. This resulted in the pilot having to return back to
his station, get fuel, switch out pilots, and then return
to the scene. This not only wasted time and money but
further endangered the patient.
I received reports from local ranchers that BLM law
enforcement officers were seizing their empty protein
supplement tubs as soon as the cattle had emptied them. The
BLM law enforcement officer would take possession of the
tubs and threaten the local ranchers with littering
citations. I contacted the BLM's Special Agent in Charge
and expressed my concern over the officer confiscating the
tubs. I explained that the ranchers used these tubs for
many different purposes after they were empty and certain
types of tubs were returnable for a rebate when purchasing
more of the protein. I told him that it was improper for
the officer to remove these tubs and that the ranchers were
not abandoning them. The Special Agent in Charge uncaringly
laughed it off.
It was reported to my office that additional roads had
been illegally closed in the Spencer Flat area on the Grand
Staircase-Escalante National Monument. I proceeded to this
area and found a large pile of limbs, logs, and rocks
blocking access to this road. I received a report that a
BLM law enforcement officer was seen with limbs and logs in
the back of his vehicle in the area. The Monument's manager
was contacted and he advised me that this road had been
illegally closed. I questioned the local BLM law
enforcement officer that was implicated and he denied any
involvement. However, to date there have been no other road
closures of this nature.
These examples trouble me a great deal, especially where tourism is
affected. Tourism is the lifeblood of Garfield County's economy. While
we have received many similar reports from visitors, I have to wonder
how many others have simply chosen to leave the county and not return.
Another area where a lack of coordination is very evident is in
search and rescue operations on the Grand Staircase-Escalante National
Monument. In recent history, we have had a number of fatalities for a
lot of different reasons. I honestly cannot remember the number of
people I have witnessed whose lives were nearly ended and then saved by
Garfield County Sheriff's Office, Garfield County Search and Rescue,
and use of the Utah Department of Public Safety (DPS) helicopter.
But these efforts are costly both in manpower and financial
resources. From April 13, 2013 to March 11, 2014, I have spent a total
of 469.75 hours of search and rescue time rescuing individuals. This
does not count any training time for search and rescue--this is actual
time spent on searches. From July 2, 2013 to April 29, 2014, I have
38.6 hours of use on the DPS helicopter. The helicopter's rate is
$1,700 an hour, which means the cost during that period for the
helicopter is $65,620.
Yet I have not received a single minute of help or assistance from
any BLM officer, nor have I received one penny of assistance for search
and rescue reimbursements from the BLM. Although search and rescue is
primarily the sheriff's responsibility, the BLM does have an obligation
to assist when requested. I think that it is time that the Bureau of
Land Management stepped up and helped with these responsibilities. They
also need to help with manpower and financially for the individuals
that visit the Grand Staircase-Escalante National Monument and other
BLM grounds.
Although my dispatchers have attempted to contact BLM law
enforcement for assistance in search and rescue operations, there
always seems to be an excuse for why they can't help. It has risen to
the point where my dispatchers have become completely frustrated with
BLM law enforcement. Recently, we received a call that a party was
overdue and a search and rescue team needed to be sent. In these kinds
of life and death emergencies, time is often of the essence, and we
needed as much help as we could get to locate the vehicle to give us a
starting point for the search. I asked one of my dispatchers to call
the BLM law enforcement officer that is located in the middle of our
county to help with the search. The frustrated dispatcher told me,
``Sheriff, it's a waste of time! If he will answer his phone or we do
get in touch with him, all he is going to tell us is that he is out of
hours or he is off duty.''
resolving the problem
I mentioned in the beginning that my office has excellent working
relationships with other Federal law enforcement agencies. This has not
always been the case, but we have always been able to work through
these issues so we can do our jobs effectively. For example, several
years ago we had incidents, similar to those I've discussed above,
happening with the Forest Service Law Enforcement from our area. Dave
Ferrell, Director of Law Enforcement for the Forest Service, took the
time to fly from Washington, DC to personally meet with me in Garfield
County. Our discussions resulted in both a change of attitude and
personnel, and the problems have resolved themselves. In fact, I am in
the process of deputizing two Forest Service law enforcement officers,
in addition to the three Bryce Canyon National Park Rangers I have
deputized since I became sheriff in 2007.
I am confident that if we had the opportunity to engage with the
BLM constructively, in a spirit of working together, we could resolve
the problems. We are open to any opportunity to work toward resolution
with the BLM, and would appreciate any help the subcommittee could
provide in our efforts. Oversight hearings like this give us a voice
that is often overlooked, and the evidence that has been submitted to
the subcommittee without doubt provides sufficient justification for a
change in the status quo.
Again, Mr. Chairman, I would like to thank the subcommittee for
this opportunity to testify before you, and would be happy to answer
any questions.
______
Mr. LaMalfa. Thank you, Sheriff. We appreciate it.
Now we will move to Commissioner Pollock from Garfield
County, Utah as well.
Five minutes, please.
STATEMENT OF LELAND POLLOCK, COMMISSIONER, GARFIELD COUNTY,
UTAH
Mr. Pollock. Thank you, Mr. Chairman, Ranking Member
Grijalva. My name is Leland Pollock. I am a Garfield County
Commissioner. I chair the Utah State Association of Counties'
Public Land Committee. I sit on a national Public Land
Committee for the National Association of Counties.
And if you will indulge me for a moment, we have some
teenage TARS members. If I could just have them stand. Thank
you. They are with us coincidentally.
What I am going to get into today, very seldom do we come
back here and offer solutions. But I do have one solution to
this problem. Contracting when it comes to BLM law enforcement
is critical. That is where relationships are forged. And
relationships in the West, believe me, are everything. In rural
areas, good relationships can be the difference between life or
death, really literally.
Now, a couple of years ago--and by the way, these are not
partisan issues, a good friend of mine, State Director Juan
Palma of the BLM--he has nothing to do with the law enforcement
side; he is the State Director--he was working with me to
establish a contract.
This contract would have allowed our sheriff to deputize
BLM employees, let the BLM law enforcement officers use all our
resources, use our dispatch, and basically protect his safety
as well as the safety of the county. These cooperative
agreements pay the counties, the rural counties, to offer law
enforcement, and they are a huge savings to the agency, no
matter what agency it is.
A prime example of how well this works is in Kane County,
on the popular Grand Staircase National Monument. You all have
heard of that. We share that monument with Kane County. They
had an agreement similar to the one that the State Director and
myself had worked out, and it was working beautifully. You can
talk to the locals on the ground from either side, the BLM, the
local sheriff, anybody you want to talk to, and this is the way
to do it. OK?
Unfortunately, I do not share that same relationship with
the State Director of Law Enforcement. It is not because I do
not want to. It is because it is impossible. Unfortunately, as
well, this State Director of Law Enforcement canceled all of
the contracts in the entire State of Utah.
Now, you have for the record a letter from our Lieutenant
Governor stating how imperative it is for the state to get
those contracts reestablished, and we are not just talking
about fiscally. We are talking about safety for the entire law
enforcement system. Now, going forward, also, if you look at my
statement, you are going to find a NACO Sheriffs Resolution,
which means every county in the United States supports
contracts with the local sheriff.
Every county in the United States--this was passed on
through my committee and through NACO, the National Association
of Counties--every county in the United States also supports
him as the chief law enforcement officer. He has been told many
times by the BLM law enforcement side that he is not the chief
law enforcement officer of the county. This is a paradox that
needs to be fixed, and you all have the power to fix that.
Now, we sometimes in the West and in Utah--some of you
folks back here may think that we are anti-government, and that
is just not the case. We are reaching out today as well as we
will back in Utah to try to forge relationships, to try to work
through these issues.
What I am recommending here today is that we start with
contracts. These contracts work all across the West, and they
are vital to what we do on the ground. And they are a much
greater help, believe me. And a good man, Juan Palma, State
Director of BLM in Utah, knew that when he tried to forge and
enter into an agreement with Garfield County.
But also, I want to bring one point up really quick. I am
running out of time. It is kind of unnerving to me that the
state director can work on an agreement with a local county
commissioner, and the law enforcement side has the authority to
override that. That is troubling.
Anyway, thank you for your time. And Congressman Stewart, I
know you went through a lot to be here today, and you are very
much appreciated in the great State of Utah, believe me.
[The prepared statement of Mr. Pollock follows:]
Prepared Statement of Leland F. Pollock, Garfield County, Utah
Commissioner
Chairman Bishop, Ranking Member Grijalva and members of the
committee: my name is Leland Pollock, and I am a County Commissioner
from Garfield County, Utah. I also serve as a member of the National
Association of Counties Public Lands Committee and have been designated
by my fellow commissioners in Utah as the Chairman of the Utah
Association of Counties Public Land Steering Committee.
Garfield County is a scenic rural area roughly the size of
Connecticut. Ninety-three percent of the land base is under Federal
ownership, and I believe we are the only U.S. county that contains
portions of three National Parks (Bryce Canyon, Capitol Reef and
Canyonlands). We are also home to significant portions of the Glen
Canyon National Recreation Area, the Dixie National Forest, the Grand
Staircase-Escalante National Monument, two BLM field offices, and a
small segment of the Fish Lake National Forest.
I grew up cherishing the lands in Garfield County as the son of a
Park Service employee. An ex-marine, my father worked for Bryce Canyon
National Park. My father's employment was outside strict law
enforcement responsibilities, but because of his military experience,
he was often called upon to assist NPS officers--especially in the most
volatile situations. I observed with my own eyes proper methods for
protecting and serving the people of the United States.
I am here today to testify on two issues regarding BLM law
enforcement activities that have moved away from a public service
philosophy: (1) polarization of BLM law enforcement personnel/bullying;
and (2) cancellation of cooperative law enforcement agreements between
BLM and local governments.
As a preface to my remarks I want to inform you that Garfield
County has a cooperative and productive relationship with National Park
Service and U.S. Forest Service law enforcement personnel. Things are
not always perfect, but we work with them within the confines of the
law and with honest consideration for the public. I also want to let
you know we enjoy a very positive and productive relationship with Juan
Palma, Utah's State BLM Director. We meet and talk on the phone
frequently; and he has been attentive to our requests and has responded
expeditiously and appropriately within his authority. Unfortunately, we
cannot make the same statement regarding BLM law enforcement personnel.
Discussing BLM law enforcement operations is my purpose today.
This is not our first attempt to resolve issues of bullying,
intimidation and the lack of integrity exhibited by BLM law enforcement
agents. We have tried locally, and earlier this spring Utah's
Lieutenant Governor convened an executive level meeting to discuss law
enforcement on Federal lands in Utah. The meeting was attended by the
Lieutenant Governor Spencer Cox, Utah's Attorney General Sean Reyes,
the Regional Forester, the Regional Chief of Law Enforcement for the
Forest Service, Utah's State BLM Director, BLM's Chief of Law
Enforcement, and numerous Federal, state and local leaders. The meeting
was open, cooperative and productive, except for the participation of
the BLM's Chief of Law Enforcement. The Lieutenant Governor of Utah
caught BLM's Chief of Law Enforcement in a lie and exposed in his
deception. His arrogant behavior lacked integrity and was illustrative
of his department's unacceptable culture.
Our concerns/complaints are not just a matter of hurt feelings. The
policies of BLM's Chief of Law Enforcement have cost Garfield County
real dollars. Last year Garfield County and the Utah State BLM Director
worked out a cooperative agreement providing Garfield County Sheriff's
office a contract for law enforcement on BLM land. The BLM was to
reimburse the county a set amount that would have resulted in
significant savings to the Federal Government. The County--with BLM
concurrence--hired law enforcement staff, acquired vehicles and
equipment, provided training and proceeded with implementation of the
agreement. Contrary to the State BLM Director's orders and without
concurrence, BLM's Chief of Law Enforcement canceled the agreement
leaving Garfield County with a significant budget shortfall and staff
operating in an area without an agreement. We are befuddled how one
individual can override a State Director and negatively impact an
entire county with impunity.
We need your help to correct these serious problems. Let me address
the two issues cited above:
polarization of blm law enforcement personnel
Over the past decade or so we have observed and experienced an
increasing hostility from BLM's officers. I am confident you are aware
of recent, highly publicized actions involving BLM agents. But you may
not be aware that much of the frustration by everyday citizens has
resulted from lack of professionalism by local BLM officers. Some
equate BLM's law enforcement operations to bullying and intimidation.
Submitted under separate cover is a list of actions that illustrate
BLM's heavy handed authority. Three additional examples from only one
BLM unit in Garfield County illustrate the problem.
Example 1. BLM law enforcement officers have been known to block
open public roads asserted under Revised Statute 2477 and maintained by
Garfield County with rocks, logs and debris. Such actions constitute a
Class B Misdemeanor under Utah law.
Example 2. Immediately prior to a big game hunt authorized under
Utah Law by the Utah Division of Wildlife resources, a BLM agent placed
road closed signs in several county roads that accessed the hunting
area. The BLM land manager heard about the problem and took a field
trip to investigate. The land manager reports that during the
investigation he was harassed and intimidated by the law enforcement
officer. At one point the officer put his hand on his gun in an effort
to discourage the land manager from continuing. This was a direct
threat to an individual with management authority in the officer's own
agency.
Example 3. BLM requested the county's help to install an
underground waterline to serve wildlife, livestock, recreation and
other public interests. The county offered to put the waterline in a
county road to minimize any disturbance on Federal land. A BLM back
country ranger observed county equipment being transported to the
jobsite and followed county crews for more than 20 miles. When the
county crews stopped the BLM officer got out of his vehicle and walked
behind crew members harassing and interrogating them. Some crew members
became so upset they returned to their vehicle to cool down. This
occurred on a project where the county was donating thousands of
dollars of equipment time and a road easement just to help BLM.
The cumulative effect of BLM law enforcement is disheartening,
especially when I know we have good relationships with other agencies.
Dispatchers have been rebuffed so many times by BLM agents that the
county only contacts them as a last resort and with little hope for
assistance.
cancellation of cooperative law enforcement agreements between blm and
local governments
As mentioned above, we have a positive and healthy relationship
with many Federal agencies and especially with Juan Palma, Utah BLM
State Director. We have worked with Mr. Palma to develop a cooperative
law enforcement agreement similar to those executed for neighboring
counties; and he is supportive of moving forward in accordance with
Federal law. However the Chief of Law Enforcement for BLM has
unilaterally canceled contracts which has reduced coverage and
increased costs.
The Federal Land Policy Management Act (FLPMA) states that the
Secretary of the Interior shall contract with local law enforcement to
the greatest extent possible for law enforcement services on public
lands. Typically, BLM has cooperated with local county sheriff
departments to enforce state, local, local BLM laws on Federal land.
Yet lately, BLM has refused to enter into such contracts due to
resistance from BLM's Chief of Law Enforcement.
Earlier this spring Utah's Lieutenant Governor took steps to
develop cooperative agreements and contracts in accordance with Federal
law. The BLM agent in charge opposed such contracts but agreed to
provide some additional information. However, to date--4 months later,
no communication has been received from him and no improvement has
occurred in BLM's heavy handed actions.
This testimony is not intended to only document complaints. We
offer a simple solution: comply with FLPMA by contracting with local
law enforcement to the greatest extent possible for law enforcement
services on public lands. This may require direction to BLM's Chief Law
Enforcement Officer, but it is compliant with Federal law and is
supported by local BLM leadership. Such contracts will also cut Federal
administrative costs, provide better service and increase public safety
at a time when fiscal constraints demand more efficiency. This may
require Congress clarifying the authority of BLM State Directors.
We are hopeful that after careful consideration, the BLM will take
appropriate steps to better coordinate law enforcement with local
governments in Utah and BLM law enforcement will enter into contracts
as directed by Federal law. Thank you for the opportunity of speaking
today.
NACO Sheriff's Resolution
2013
Issue: Local Law Enforcement on Public Lands
Proposed Policy: NACO urges all federal land management agencies to
recognize and respect sheriffs (or the chief local law enforcement
officer) in public land counties as the primary and chief law
enforcement officer of the entire county. Federal agencies should
execute cooperative agreements with counties to ensure fair and prompt
federal payment of compensation for additional local law enforcement
activities desired of sheriffs, and federal agencies submit their
agents for deputization and accountability under local sheriff
authority and control.
Background: Federal land counties are frequently impacted by lack of
coordination from federal law enforcement officers. Federal officials
fail to recognize the County Sheriff's role as the chief law
enforcement officer within his/her jurisdiction; and, often, federal
officers undermine local law enforcement efforts by usurping local
authority in violation of established law. Counties are also forced to
expend limited local funds to perform uncompensated law enforcement
functions on federal land. This resolution is needed to encourage
federal agencies to: a) recognize the sheriff's role as the chief law
enforcement officer; b) work cooperatively with local government to
coordinate law enforcement functions on federal land in accordance with
established law; and c) develop cooperative agreements to compensate
local government for services provided on federal land and to establish
clear lines of authority.
Fiscal/Urban/Rural Impact: There will be limited fiscal impact for
urban areas. Rural areas, especially public land counties, can expect
greater coordination with federal law enforcement officials, reduced
duplication of effort, and increased funding resulting from cooperative
agreements and clearly defined roles. Citizens will reap the benefits
of more efficient responses to problems, reduced cost by eliminating
duplication, a streamlined approach to law enforcement issues, and
greater efficiency of all levels of government.
______
Mr. LaMalfa. Thank you, Commissioner Pollock.
At any moment, votes will be called on the House Floor for
a series of votes, amendments, et cetera. So we will just work
through this as we can here.
Mr. Gerber, you are up next, Commissioner Gerber.
STATEMENT OF GRANT A. GERBER, ESQ., COMMISSIONER, ELKO COUNTY,
NEVADA
Mr. Gerber. Thank you, Mr. Chairman, members of the
committee. I certainly appreciate the opportunity to come here
today and represent my constituents in Elko County and
represent many of the people in Nevada that are concerned. I
believe this hearing regarding threats, intimidation, and
bullying by Federal land management agencies is very
appropriate at this time.
I am a fourth generation Elko County resident. Our family
settled there in the mid-1800s, and I have been cowboying in
that county since the 1940s. I am 72 years old. I served in
Vietnam. Our family, besides having a ranch, we had a hunting
camp for over 30 years.
But a major change has occurred in Elko County. The BLM and
Forest Service agents are operating so far different than they
did when I was a boy and as I grew up. At that time,, they were
friendly. They came to the ranch. We worked with them. But over
the years, that has changed.
They are predominately from outside the area and do not
develop connections with the locals, and many of them start off
with a belligerent attitude, even a commanding presence. They
are especially offended if anyone opposes any Federal
Government actions. And the worst are the Federal law
enforcement agents that arrogantly announce that they are not
governed by Nevada law but can enforce it if they choose.
Now we have been informed, without notice or hearings, that
the BLM has determined that two more BLM law enforcement agents
are necessary to control the people in Elko County. It is
unacceptable to us, to have additional people imposed on us
without our consent.
I am going to give you two quick examples of our problem.
In the fall of 2012, three minors on their day off went up to
cut wood on Spruce Mountain. They cut the wood, and after they
came off the mountain, they stopped to readjust their loads.
They looked back, and here was a pickup flying down the
road at them, and one of the minors said they were getting air
as it came. And this BLM agent jumped out. He had two guns on
him. He had a flak vest on him, dark glasses. He was
belligerent. He told them that he was giving them a ticket for
cutting wood in a wilderness study area.
They protested and said, ``We've got permits here, and we
were not on a wilderness study area.'' But because of the cost
of driving 300 miles to Reno to contest it, and having to go
down twice and hire an attorney, it would have cost them
thousands of dollars to protest it.
So I heard about it and offered to represent them for free.
And we got a ways into it, and I looked at the maps, and the
law enforcement agent from the BLM was on the wrong mountain.
To get to where he said the wilderness study area was, you had
to go down the valley and up on the mountain on the other side.
He did not know where he was. These people are, many of them,
very unprofessional. They do not even know where they are.
We got that case dismissed, but only after he had called
them and given them false information about when the hearing
was going to be, and that it had been dismissed. And we got
that on their telephones.
But the most egregious is down at Battle Mountain at this
point. In that district, the Battle Mountain BLM Manager, Doug
Furtado, has been threatening, intimidating, and bullying the
citizens down there. That Battle Mountain District covers a
huge amount of the State of Nevada. It goes down and connects
up with Clark County.
In Clark County, the BLM has succeeded in eliminating all
50 of the ranchers. There are no more ranchers on that
district, according to the BLM regulations. The only one left
standing there, is in their mind, still there illegally. In the
Battle Mountain District, Mr. Furtado is attempting to do the
same thing. In the last 2 years, he has eliminated over 10,000
head of cattle grazing on that district.
I was contacted, and volunteered to help these ranchers for
free to see if we could change things. There are six families
that this spring were given an order that--oh, I have run out
of time. That's what happens with attorneys.
[Laughter.]
Mr. Gerber. But this is an issue that is clearly wrong, and
we have to make changes, and we have to make them quickly.
Thank you very much. I would be happy to answer questions.
[The prepared statement of Mr. Gerber follows:]
Prepared Statement of A. Grant Gerber, Commissioner, Elko County,
Nevada
My name is Grant Gerber. I am an Elko County Commissioner and a
fourth generation descendant of ranchers that settled in Elko County,
Nevada in the mid 1800s.
For over 35 years I have been serving as an attorney working on
Federal Land issues.
A major change has been occurring in Elko County. When I was a boy
and as I grew the few Federal Agents were mainly local or from rural
areas and fit in well with the local area. They knew the people and
worked cooperatively. Now the Federal Agents are predominantly from
outside the area and do not develop connections with the locals as was
done previously. Many start off with a belligerent attitude, even a
commanding presence. They are especially offended if anyone opposes any
Federal Government actions. The worst are the Federal Law Enforcement
Agents that arrogantly announce that they are not governed by Nevada
law, but can enforce it if they choose. Now we have been informed that,
without notice or hearings, the BLM has determined that two more BLM
Law Enforcement Agents are necessary to control the people in the Elko
area. All of this is resulting in less use of Federal Lands by citizens
as the citizens become afraid of being accosted and berated.
That has to change. Following are the most recent egregious
examples in northern Nevada.
In the fall of 2012, three miners, on their days off, drove their
pickups onto Spruce Mountain to cut winter wood. When they drove off of
the mountain with the wood they cut they stopped to adjust their load.
Suddenly, a pickup came flying down the road after them. One of the
miners said it was coming so fast that it was catching air over the
bumps in the road. The pickup slid to a stop and a man jumped out with
two guns, flak vest, radio, tazer, handcuffs and with his pants tucked
into jump boots. He belligerently announced that he was giving them a
citation for cutting wood on a BLM Wilderness Study Area. When the
miners told the agent that they had permits to cut and that they did
not cut on a Wilderness Study Area, he would not listen. The agent told
them that it was a Federal offense and not to contest the citation
because the Federal Government always won. He gave each of the miners
tickets of $275. A boy was in one of the pickups and he was so
intimidated that it made him cry.
The miners knew that they had not been on a Wilderness Study Area
but it was going to cost them thousands to drive to Reno 300 miles away
to Federal Court twice and hire an attorney to defend themselves.
Additionally, they would miss at least 3 days of work. For these
reasons, they decided to pay the fees and cut their losses. I heard
about the situation and met with the miners. I told them that I had a
criminal attorney friend in Reno and we would represent them for free.
We reviewed the maps of the area and confirmed that the agent, Mr. Brad
Sone, did not know where he was. He was on the wrong mountain! He cited
the miners for cutting wood in a Wilderness Study Area on a mountain
that was over 7 miles away down, across a valley and up the other side.
Before the preliminary hearing Mr. Sone called the miners and told
them the date of the hearing had been changed. One of the miners called
the court and learned that Mr. Sone had not told them the truth, that
the date had not been changed. Then the agent called the miners again
before the trial and told them the case had been dismissed. Again the
miner called and learned that the case had not been dismissed. I do not
practice criminal law, but criminal attorneys have told me that Sone's
calls were illegal at worst, and if not illegal it was inappropriate
for the arresting officer to contact the cited citizens. The agent had
already intimidated them and now was continuing to intimidate and
mislead them.
In Battle Mountain, Nevada the Battle Mountain BLM Manager Douglas
Furtado has been ``threatening, intimidating and bullying.'' He has
used BLM Law Enforcement to attempt to intimidate people from
exercising their First Amendment rights of petition, speech, assembly,
press and prayer. The Battle Mountain District over which Mr. Furtado
presides is huge. It covers from Clark County in the south to I-80 in
the north covering Nye County, (the largest county in the Nation),
Eureka County, Lander County and Esmeralda County. Mr. Furtado has been
eliminating much of the grazing in the Battle Mountain BLM District.
Over 10,000 cattle have been removed in just the last 3 years. On one
area alone, in June 2013, Furtado removed all 900 cattle that had been
grazing each year for over 140 years. And in 2014 he did not allow any
of those 900 cattle to graze even though the grass was over 2 feet high
on much of the range. Because of these drastic grazing reductions the
fire danger is excessive. Millions of animals have burned because of
the management practices of the BLM and these actions by Mr. Furtado
will result in the burning of millions more. Before the huge BLM
reductions in grazing there were few fires. If Mr. Furtado succeeds in
eliminating all the cattle in his district he will join the Clark
County BLM District as ``cattle free''. In the 1980s there were over 50
ranchers with grazing rights in the Clark County District. Now there
are no cattle authorized to graze on that district.
In March of 2014 I volunteered, for free, to help the ranchers in
the Battle Mountain District reverse the unfair, illegal and morally
corrupt practices of Douglas Furtado that were threatening millions of
animals, destroying the lives of ranch families, harming the mining
industry, hurting hunting and recreation and causing great harm to the
economy. In working on this project I have learned many things about
Mr. Furtado. He is vindictive and conniving. He has developed one
tactic to an art form--``voluntary non-use.''
In April a petition was created and passed throughout northern
Nevada to have Mr. Furtado removed. Mr. Furtado sent a BLM law
enforcement officer to the local hardware store where there was a
petition to have him removed on the counter. The BLM Agent informed the
store owner that it was a Federal offense to threaten or harass a BLM
official. He then left the store for a few minutes, but then went back
in and took photos of the petition. Steve P. Seldin, the store owner
stated, ``The officer appeared to be dressed as though he were going to
war over seas, with black jacket, guns, etc. Only thing he may have
needed to complete the uniform would be a steel helmet.''
A GRASS MARCH/COWBOY EXPRESS was then organized to take the
petition asking for Mr. Furtado to be removed to Governor Sandoval 320
miles on horseback. At the end of the ride the BLM had an agent there
taking pictures of the participants. Many of those participants were
intimidated because they rely on Federal Grazing Rights that Mr.
Furtado controls.
Following are some issues that I am investigating as a result of my
work with the ranchers in the Battle Mountain District. This
investigation is ongoing and far from complete. I will supplement my
testimony at this hearing with the results of this investigation.
voluntary non-use
That phrase is supposed to mean that the holder of the grazing
right has voluntarily decided not to graze an area. Mr. Furtado has
gone to ranchers and asked them to take ``voluntary non-use'' for part
of their grazing. If they refuse or argue he then tells them that he
will give them 100 percent cuts. So they then agree to the ``voluntary
non-use.'' Other districts in Nevada use this tactic, but are much more
subtle when doing it. The rancher that is intimidated into taking
``voluntary non-use'' is then afraid to complain about it because they
did it ``voluntarily.''
One rancher is reported to have asked Mr. Furtado if the BLM would
please remove some of the horses that were overrunning the range as
required by Congress. Mr. Furtado is reported to have told him that he
would not remove any horses until he had removed all the cattle from
the Battle Mountain District.
In February of 2014 Mr. Furtado announced to six extended ranching
families, the Tomera, Filippini and Mariluch families that they would
not be allowed to turn any cattle out on Mount Lewis during 2014. Their
10-year grazing licenses authorized them to turn out over 2,000 head of
cattle in March. They argued with Mr. Furtado, but he refused to budge.
I prepared a petition demanding that Mr. Furtado be removed from his
position as the Battle Mountain BLM Manager. That petition now has many
signatures and is continuing to gain signatures. Some of the ranchers
have refused to sign because of fear of retaliation by Mr. Furtado.
On May 17 a GRASS TOUR of Mount Lewis was conducted with Nevada
State Senator Pete Goicoechea, Assemblymen John Ellison and Ira Hansen,
the Lander County and Elko County Commissions. There were over 200
citizens on the tour that saw the grass that was over 2 feet high. This
information was published in the newspapers along with the announcement
that a GRASS MARCH would go from Elko to Battle Mountain on May 26 and
a COWBOY EXPRESS would then go from Battle Mountain to the Capital in
Carson City to deliver petitions to Governor Sandoval requesting that
Mr. Furtado be removed. The Washington BLM office sent a representative
to review the condition of the range and immediately after he came Mr.
Furtado met with the ranchers and agreed to let them graze their cattle
in 2014. So finally 2\1/2\ months after they should have had their
cattle out on the mountain they began turning cattle out. But Mr.
Furtado's actions had caused them hundreds of thousand of dollars of
loss. And because the low country was not grazed off when it should
have been there is a tremendous amount of fuel that has now turned
brown and is ripe to burn threatening the lives of tens of thousands of
animals and the rancher's cattle.
It is to the credit of the Washington BLM that Mr. Furtado was
required to turn the cattle out, but immediately he began a program of
intimidation to justify his earlier decision to not allow any cattle to
graze on Mount Lewis in 2014. I am researching that intimidation and
will supplement this testimony with that information. As a part of that
intimidation Mr. Furtado took Ms. Fite of Western Watersheds on a tour
of Mount Lewis and refused to allow any of the ranchers to participate.
To shed further light on the tactics of Mr. Furtado and help the
public to understand the great threat to wildlife because of the
increased fire danger and the great harm he has caused and is causing
to the ranchers, miners, hunters, recreationist and the economy a GRASS
MARCH/COWBOY EXPRESS will leave Carson City to Washington, DC on
September 29, 2014 crossing the continent in approximately 20 days. It
will be the fastest crossing of the Nation on horseback in history. A
horse and rider will lope 5 miles and then pass the petitions asking
for the removal of Mr. Furtado to another rider who will then lope 5
miles.
If everyone in Nevada, all County Commissions, the Nevada State
Legislature and the Governor and even all of Congress wanted to remove
Mr. Furtado it could not be done without an impeachment proceeding. Mr.
Furtado works for the Executive Department and the Executive Department
is the only entity that can remove him. That is an intolerable
situation. There has to be local control and the only way that can be
accomplished is for the Federal Government to transfer the BLM lands to
the states. If Mr. Furtado was an employee of the State of Nevada he
would have been removed in 2012 or 2013 and certainly by this time in
2014.
The BLM law enforcement agents in Nevada report to Salt Lake City
and there is no local input. And the BLM is very reluctant to
investigate stories of abuse. When the Elko County Commission
considered the woodcutting incident the BLM was outraged and said the
miners should have taken their complaint to the BLM. At an Elko County
Commission meeting in the spring of 2013 the BLM said they would
investigate the incident. But the investigation was not begun until the
spring of 2014 and is proceeding very slowly. The investigator from
California is starting to ask the right questions, but so much time has
passed, over 14 months, that when the report does come out it will be
an old story. Contrast that with what would have occurred if the
citation had been issued by an Elko County Sheriff's Deputy. Because
the Elko County Sheriff is an elected official and answers to the
citizens of Elko County the Sheriff would have done an immediate
investigation and taken appropriate action. If he found the officer had
acted improperly he would have either disciplined him or fired him and
that information would have been public. There is no corresponding
accountability within the BLM. Even if the BLM, after this delayed
investigation, finds that the agent acted improperly the BLM will keep
any actions it takes secret to protect the reputation of the BLM.
On January 9, 2013 a delegation of the leadership of BLM law
enforcement from Salt Lake City came to the Elko County Commission
meeting and proposed a Memorandum of Understanding that would give the
BLM Law Enforcement Agents the ability to cite for Elko County
ordinances and Nevada State law. The Commission was opposed. The
delegation then went on to explain that it really did not matter what
Elko County did the BLM was going to enforce Elko County and Nevada
State Law if the BLM decided to do so, including citing drivers on Elko
County roads, Nevada State Highways and I-80 because those roads and
highways passed through BLM lands.
In 1930 Gandhi began the Salt March that eventually gained freedom
for the citizens of India. He said that it was the inalienable right of
Indian citizens to have freedom and enjoy the fruits of their toil.
Likewise the citizens of Nevada have the inalienable right to freedom
and the fruits of their toil. The combined might of the BLM, especially
BLM law enforcement and BLM Managers like Mr. Furtado are deriving
Nevadans of their freedom and the fruits of their toil.
Congress must act to restore freedom.
Enclosures:
Exhibit A: Hansen Letter
Exhibit B: Mariluch Letter
Exhibit C: Seldin Letter
Exhibit A
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Exhibit B
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Exhibit C
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr. LaMalfa. Thank you, Mr. Gerber. You heard the buzzer go
off here, so votes are underway. But I think we have enough
time to do one question on each side before we have to recess
for a little while to go do Floor votes. So we want you to
stick around. You have traveled, and we want to have the chance
to do the full round of questions, if you would like.
So I will recognize myself for 5 minutes here, and ask
Commissioner Pollock, and Sheriff Perkins you can jump in as
well, but we want to know what the impact is on your Garfield
County budget as a result of the enforcement contracting
agreement with BLM falling through.
Sheriff Perkins. I am going to take just a few seconds, and
then give it to Commissioner Pollock.
One of the impacts is going to be--I have another example
where I actually have had people tell me that they will never
return to my county because of the way they were treated by BLM
law enforcement for simple things that they did that were not
illegal. They parked their motorcycles in the borrow pit and
walked over to a rock cropping, and were threatened with a
citation and impoundment of their bikes. And these people are
good people.
Mr. LaMalfa. Could you elaborate on that? They parked their
motorcycles--how was that?
Sheriff Perkins. Sorry. The borrow pit is a part of the
county road right-of-way where the water drains.
Mr. LaMalfa. For those that are watching, so you are
talking there is a roadway and there is the edge of the road
where it is lower. That is the borrow pit?
Sheriff Perkins. That is the borrow pit, yes. They parked
their bikes down there so they did not leave them on the
roadway, and they walked over to a rock cropping. When they
came back, this is when they were met by this BLM ranger and
told they should have left their bikes on the roadway.
Mr. LaMalfa. In the middle of the road?
Sheriff Perkins. Well, on the edge of the road or on the
roadway. They were threatened with a citation----
Mr. LaMalfa. Is it a narrow road?
Sheriff Perkins. No. It is a two-lane road. It is a dirt
road.
Mr. LaMalfa. Is it a paved road? A dirt road?
Sheriff Perkins. A dirt road, but two lanes. Wide enough
for two vehicles.
Mr. LaMalfa. So there was other traffic that might be
coming, trucks and cars?
Sheriff Perkins. Absolutely. It is a busy road.
Mr. LaMalfa. Logging trucks? Larger vehicles?
Sheriff Perkins. Tourists. It is down the Hole-in-the-Rock
Road, if you are familiar with the area.
Mr. LaMalfa. So the average person might think it is wise
to pull your machine off and park it----
Sheriff Perkins. Absolutely. You would not want to leave
anything in this roadway.
Mr. LaMalfa. OK. And the gentleman was cited for that?
Sheriff Perkins. He was not cited. He was threatened with a
citation. They told me that they were bullied and mistreated,
were their exact words. So that affects our economy a great
deal, when people will not return to our beautiful county
because of the way that the law enforcement treated them.
Mr. Pollock. Thank you, Sheriff. Fiscally, you have to
remember--let me frame this a little bit and put it into
perspective; 93 percent of our county is federally owned; 3\1/
2\ percent is state. So we have 3\1/2\ percent of that county
to tax; 87 percent of that revenue goes to the school district.
So we can operate our county for 16 days from property tax
revenue. So I am glad you asked that question. These contracts
would have been vital. And again, this is nobody's fault on the
State Director's behalf. He came down. I spent a full day with
him on the monument. And he could see the problem.
And we worked out a cooperative agreement verbally, and he
would have carried through on this. This man has integrity. He
would have carried through on a contract that I believe was
$120,000 a year to cover another county deputy and provide
additional services from all deputies. They would have been at
his disposal.
So we hired a deputy in good faith. Now, when we hired this
deputy, bear in mind he is still working for us. So we have the
deputy, the additional deputy, which is needed. Whether it can
be afforded or not is questionable. Now, bear in mind, property
tax is how most counties survive. We survive from
intergovernmental revenue.
So from a budgetary standpoint, things like this are very
troubling to me.
Mr. LaMalfa. Thank you.
Mr. Gerber, would you like to touch on that subject as it
affects Nevada?
Mr. Gerber. Yes. We have just done some recent studies, and
the cost of the Federal Government is in the multi, multi
millions. And that is why it is imperative that these lands be
transferred from the Federal Government to the states so that
we can survive, not just for the reasons that we have about the
intimidation and the bullying.
But if the Federal agents were not there and it was state
agents, we would do well, if county sheriffs could take care of
things. But as a result of this, we have situations like in
Battle Mountain, where the agent came at the request of the
Battle Mountain manager and intimidated a store owner that had
a petition there, saying that if there was any threats to
Federal agents, he would be arrested. And it was purely done
for intimidation purposes. There are those kinds of
intimidation things we cannot accept.
Mr. LaMalfa. Thank you to our panelists. I will recognize
Mr. Grijalva for 5 minutes.
Mr. Grijalva. Thank you, Mr. Chairman. I am just going to
ask some questions for clarification, some of the
inconsistencies that I want clarified or at least explained. We
make a lot of decisions based on conjecture in this body
sometimes.
On the issue in which we have BLM being, based on the
experiences in Garfield and Nevada, categorized as an
organization that--the generalization is this is system-wide,
that it occurs everywhere. I think that is a leap too far for
me in terms of conjecture. I think data for this committee, and
verifiable examples that the agency has a chance to respond to,
and the Members can deliberate and see what they feel, I think
would be the appropriate way to go.
But in terms of just clarification, Commissioner Pollock,
Garfield County, as I understand it, passed a resolution
declaring that Federal law enforcement authority--I am assuming
specifically BLM--is not recognized in the county.
Now, if the county chooses not to recognize Federal
authority, why the advocacy for Federal funding? That is where
there is some inconsistency. Either you recognize the
legitimacy of the Federal Government in the sense of law
enforcement in this instance, and want to be a partner and deal
with the contractual issues that have been brought up, or you
do not. Am I misreading that resolution and your statements?
Mr. Pollock. No, Ranking Member. Actually, I am glad you
asked that question. That resolution, believe me, was a last
resort. That resolution has just been passed. What that
resolution is doing is protecting our citizens. Now, I have
been nice enough not to speak of the bullying going on, but I
am going to give you a couple of examples.
Mr. Grijalva. No. That is OK. I only have 5 minutes. But I
wanted to get to the specific question I asked you, about the
inconsistency.
Mr. Pollock. The inconsistency? That is fine, and I can
deal with that. If the BLM would like to come forward and forge
a relationship and sign contracts, absolutely. We would recant
that resolution. But bear in mind, a resolution is not a legal
document. When we have to----
Mr. Grijalva. OK. I was going to bring up that next. But it
is a formalized opinion by the----
Mr. Pollock. Absolutely. It is what we have to do in
extreme situations. And believe me, Congressman, this is an
extreme situation. These are not partisan issues. And if the
BLM would like to forge something by way of contracts, not just
with Garfield but the entire State of Utah--and it is not just
Garfield County that has created these resolutions; four other
counties have done the same and followed suit.
Believe me, it is a last resort. And I really do not think
there are inconsistencies simply because we reached out to try
to resolve this. We tried to resolve this.
Mr. Grijalva. Do you believe that based on Utah State law,
that that provides Garfield County, Mr. Commissioner, with the
authority to operate roads within the National Parks and the
National Monuments?
Mr. Pollock. You mean as far as maintain, Congressman?
Mr. Grijalva. Operate. Yes.
Mr. Pollock. Yes. We are already doing that. We maintain
them as we speak. If we did not maintain them--their budgets
have been cut to the point we have to maintain BLM roads or
they will be closed by way of weather. On the forest, you would
not be able to see the popular Dixie National Forest without
our road maintenance program. So we are maintaining those roads
as we speak at our expense.
Mr. Grijalva. I think the last one--and I appreciate that--
do you recognize BLM's authority to enforce Federal law on the
public lands and in Garfield County?
Mr. Pollock. OK. Where they run into trouble with us as far
as us recognizing that authority is if they affect the health,
welfare, and public safety of our citizens. If they do so, then
it is my job and the sheriff's job to protect the health,
welfare, and public safety of the citizens in our county.
And believe me, this is protection that our citizens need.
And it does not matter what the adversary is. If they are being
threatened in any way, it is our job--when we were sworn in, we
took an oath to protect the health, welfare, and public safety
of the citizens of our county. So in that sense, we need to
protect our citizens. That is our job.
Mr. Grijalva. But there is an acknowledgment, I hope--or
that is my own preference--there is an acknowledgment that the
enforcement of Federal law is BLM's prerogative?
Mr. Pollock. It depends on the situation. And I am telling
you right now--I am telling you right now----
Mr. Grijalva. OK. Thank you.
Mr. LaMalfa. We have to stop here. We are going to recess
for--I hate to guess time on the House of Representatives on
real time. It looks like we made up 30 seconds on the clock
here, but approximately 35, 40 minutes to get through the votes
we have on the Floor.
So please stay if you can, and then we will finish up this
first round of questions, then have our second panel. So thank
you for your indulgence. We will recess for a little while.
[Recess.]
Mr. LaMalfa. We will resume with the hearing of the Public
Lands Subcommittee. Thank you for your patience, you all, as we
conducted our Floor business. It always seems to take longer
than you would hope. But anyway, thank you for staying. We were
in the middle of our first round of questions for Panel I, so I
would now recognize the gentleman from California, Mr.
McClintock, for 5 minutes.
Mr. McClintock. Thank you, Mr. Chairman.
The stories you have told are similar to stories that my
office is constantly receiving. I have the Sierra Nevada of
California. Some of our counties--Alpine, for example--96
percent of the land area of that county is administered by the
Federal Government.
Mr. Gerber, the change in attitude that you reported over a
generation is very similar to what I have observed as well in
my time in California. The frustration that we have for some
very good reasons. Our Constitution is founded on a separation
of powers. Congress has the sole authority to make the law, but
the President has the sole authority to enforce it.
So my question of you, in speaking of essentially the
administration of these agencies and the administration of the
law, that is beyond our powers as a Congress. Our power is to
enact legislation. What changes do you believe need to be made
in order to right this wrong?
Let me throw out a couple of suggestions. One of them is, I
do not understand why land managers have to be armed. Should
not the law enforcement on these lands be left to local law
enforcement agencies?
Mr. Gerber. Without question, Congressman. The sheriff is
and should be respected and be the chief law enforcement area
of a county. He is elected locally. That was the purpose of the
Revolution in the first place, is to have local control.
As a result of what has occurred, the Federal Government
continues to increase its position in every one of these
states. And so at the end of the day, the only solution, the
only solution big enough, is to transfer the BLM and Forest
Service lands to the states so we get back to what the Founding
Fathers intended.
Mr. McClintock. Are you suggesting transferring the entire
lands to the states, or law enforcement responsibility to the
states?
Mr. Gerber. The land itself. Six states have passed
legislation that has begun taking us in this area, Montana,
Wyoming, Utah, Idaho, Nevada, and Arizona, and it appears that
Alaska is going to be next. We have made significant strides in
the eastern states and in the southern states because they are
beginning to realize that they should not be sending their tax
dollars out there to waste money on these fires that would not
occur if the locals had control.
If the locals had control, we would have it grazed. We
would be logging. And as a result, millions of animals would be
saved because these fires kill millions every year. And then
all the easterners would benefit because the pollution would
not be coming this direction.
So we are in a position where things can change, and that
is why we are here. We want that change to occur, and we think
that the western states should have the same freedoms as the
eastern states. And we believe that the enabling acts of the
western states are exactly the same as the enabling acts of
these eastern states.
In Illinois and Indiana and Missouri, they had 90 percent
of their land controlled by the Federal Government in the
1820s, and they got it changed because they banded together. So
hopefully we can get that done, sir.
Mr. McClintock. It is interesting to note that, as I said,
I have a county where 96 percent of the land is controlled by
the Federal Government. Overall, I believe about 42 percent of
California is controlled by the Federal Government.
It is interesting to note that the Federal Government only
controls 25 percent of the land area of the District of
Columbia. Here is the national capital, a Federal district,
with all of the national malls and buildings and other public
works. That amounts to about 25 percent of the land area of
Washington, DC.
Mr. Gerber. Well, at the time that was set up, the Founding
Fathers were still in charge.
Mr. McClintock. Thank you. I yield back.
Mr. LaMalfa. The gentleman yields back.
I will recognize the gentleman from Colorado, Mr. Tipton,
for 5 minutes.
Mr. Tipton. Thank you, Mr. Chairman. I would like to thank
our panel for taking the time to be able to be here. For
Members out of Utah, I am out of Colorado. We probably have
some very common experiences that are there.
Commissioner Gerber, I would like to question you. We had
Secretary Jewell before the Natural Resources Committee, and we
have had a lot of issues in Colorado, as I believe we have
probably in Nevada, certainly over into Utah, with road
closures, which have been noted in some of the testimony.
The Department of the Interior, the BLM, the Forest
Service, have they ever approached you in any type of
consultation in regard to road closures?
Mr. Gerber. Elko County met with the Forest Service over a
hundred times during the period that the Forest Service was
going through its travel management plan, and at the end of the
day Elko County got nothing that they asked for, and they have
closed hundreds of miles. In the West, they have closed
thousands of miles of road, and the local people were just
ignored.
So roads are being closed, and that also results in
increased fire. Millions of animals killed. It is an
intolerable situation, sir.
Mr. Tipton. This might be a question for the entire panel.
Given some of the road closures--we have a vast expanse of
public lands throughout the West--from a sheriff's standpoint
in terms of public safety, when we are responding to a forest
fire or if there are other problems that are going on, have
these road closures impacted your ability to be able to service
your communities public safety-wise?
Sheriff Perkins. Absolutely. Let me answer that.
Absolutely. I had a search and rescue just last year where an
elderly gentleman had been gone for over 24 hours. This man was
in his 80s. Southern Utah is big and vast, like Colorado. A lot
of this area, there were old ATV trails that had been closed
off. We were using the helicopter, with no avail.
But I actually had to go open personally--I went and opened
these trails for my search and rescue to get in and save this
man's life.
Mr. Tipton. So it is a matter of actual safety?
Sheriff Perkins. Yes.
Mr. Tipton. And Sheriff, just by way of a little bit of
background, how long have you been in law enforcement?
Sheriff Perkins. I have been around for a long time. At the
end of this year, I will have 28 years--8 years as sheriff, 20
years before that as a deputy.
Mr. Tipton. Great. Twenty-some-odd years, basically, of
experience. Growing up, we dealt a lot with the BLM. Dealt a
lot with the Forest Service. And effectively, they were
community members. But it seems from your testimony that we are
starting now to see changes in terms of some of the
administrative policy that is coming out.
Do you see this as a systemic, out of Washington, top-down
sort of an approach, or is it more at the local level?
Sheriff Perkins. Well, I will tell you, I am not sure
because like with the Forest Service, I am here to tell you
that a couple of years ago I had the very same problems with
the Forest Service as I do with the BLM today. They just would
not work with me.
But after some personnel changes and after the director
came to not only the Utah Sheriffs Association but Western
States Sheriffs, and eventually to Garfield County, I've seen
some good changes. And I have an extremely good working
relationship with the Forest Service now, like I always have
had with the DEA and the FBI and Immigration.
In fact, I have a contract sitting on my desk. I am going
to deputize two Forest Service law enforcement officers for
Garfield County. Last Friday we just had a mission where we had
a shooting suspect that was up in our hills, and I sent a
deputy along with this Forest Service officer for backup.
So the BLM, I do not know where it stems from. I wish it
was that easy. I think, and I am being candid here, and maybe
that is kind of a fault I have, but there need to be some
personnel changes. There have been so many bridges burned, I do
not know if they can ever be repaired.
I want to work with these people. You people, please, go
through these letters that I have provided you from other
agencies, other sheriffs, and these people, they want to work
with the BLM. They really do. But they need the BLM to
recognize their law enforcement authority.
Mr. Tipton. So is this a communication problem or is it
more to the point you simply are not being heard?
Sheriff Perkins. I think that they just do--the people that
I have in my area, and I am speaking as Garfield County
Sheriff, they have a problem with recognizing the sheriff as
the chief law enforcement agency.
And you need to understand that if they have operations
that involves a drug eradication program where they bring
helicopters in my county, they need to go through me with that,
on that kind of stuff, because--and this has happened--I have
other situations that are going on that I may not want a
helicopter over a certain area at a certain period of time
because it could actually put people's lives in danger on other
operations.
So they need to coordinate things with the sheriff. The
sheriff is like Congressmen and Senators and all the other
elected people. We are the people's representative, and it is
our responsibility to oversee the law enforcement in our
counties.
The FBI, when they come through my county, I get a phone
call if they have something going on. The DEA, they are my
right hand when it comes to big drug seizures and these cartel
gardens that we have dealt with. I respect the Federal
Government agencies, and they have a place. But the sheriff is
the chief law enforcement officer of the county.
Mr. Tipton. Thank you, sir.
Mr. LaMalfa. Thanks, Mr. Tipton.
We have completed the first round of questioning by those
available on the panel here, so I will recognize myself in a
brief second round of questioning here as well.
Sheriff Perkins, I do not imagine you are the only sheriff
that is experiencing these activities and actions in your state
or maybe even neighboring states. Do you know of other
jurisdictions or other sheriffs that feel the same way?
Sheriff Perkins. Once again, when you folks get a chance to
go through the packet that I have provided you, there are going
to be letters from a Nevada sheriff. There are going to be
letters from western states sheriffs. There are going to be
letters from several other sheriffs throughout Utah.
Yes. It is a problem in the western United States, not just
in Garfield County. This is not just a Garfield County problem.
This is a western United States issue.
Mr. LaMalfa. Other sheriffs you have talked to express
concern?
Sheriff Perkins. Oh, absolutely. They will pour their
hearts out in these letters. If I may, I just want to read one
paragraph from a sheriff in Lincoln County, Nevada, I think
that is where he is from. And this is the problem. This pretty
much says it all:
``Over the past few years I have continued to try to work
with the BLM on issues in Lincoln County, but tensions have
been very high. A few months ago, I had occasion to speak to a
BLM employee and was discussing issues between counties and
Federal agencies. The BLM employee pointed to a flagpole that
was near to us and said, `See that American flag? It is above
the Nevada flag, and you need to remember that'.''
That is the problem.
Mr. LaMalfa. Interesting. Well, the BLM had guidelines and
rules that they are supposed to follow, and they have a
handbook that their officers are supposed to use. So what do
you think is in that handbook as far as their interaction with
the state and local laws on that?
Sheriff Perkins. First of all, and I have talked to the BLM
and they recognize that they have--and I recognize that they
have--proprietorial jurisdiction. And this is the definition of
that. It's in the Eisenhower Report. It has been around for a
while. ``The United States has acquired some right or title to
an area within a state, but has not obtained any measure of the
state's authority over the area.'' That's what it is.
Now, in their own handbook, in their own rules, let me read
you this, if I can find it. ``BLM law enforcement must not
enforce state and local laws without a written law enforcement
agreement with the state and local agencies that has authority
to grant state law enforcement authority to Federal law
enforcement officers.'' That is in their own rule book.
Mr. LaMalfa. OK. Thank you. That is very telling.
Commissioner Pollock, what has your relationship been like?
Have you engaged them? Have you dialoged very much with these
folks in order to come to an agreement as gentlemen instead of
perhaps the heavy hand of the Federal law?
Mr. Pollock. Thank you, Mr. Chairman. You are talking about
the law enforcement side of it?
Mr. LaMalfa. Yes.
Mr. Pollock. Yes. In fact, the entire State of Utah
convened a special hearing during the legislative session. The
Lieutenant Governor, myself, and several others had the
Director of Law Enforcement of BLM--I think he is over Nevada
and Utah--in that meeting, and there was Utah State legislative
leadership, Attorney General Sean Reyes, and many of the
leaders of the State of Utah. And we were up----
Mr. LaMalfa. How did that go? My time is running short. How
was the dialog, or was it a useful dialog?
Mr. Pollock. Not good. It was very, very petulant coming
from the Director of Law Enforcement. In fact, there was no one
in the room, including the Lieutenant Governor of the State of
Utah, that could get along with this guy.
So yes, that is a great question. And we have had problems
that we cannot get through. And that is why we are asking, the
only solution that we can see is a personnel change.
Mr. LaMalfa. OK. Thank you. We have heard that already a
couple times.
Commissioner Gerber, the terminology, ``voluntary non-
use,'' is one that has come up and can be used in certain ways.
Why do you not expound upon that for a moment in my remaining
time?
Mr. Gerber. It is supposed to mean that the holder of the
grazing right voluntarily relinquishes his grazing for a year
or 2 years.
Mr. LaMalfa. Why would they do that?
Mr. Gerber. Most of the time they do not want to do that.
But what happens is that in the case of Mr. Furtado, he went to
them and said, ``Look. I want you to reduce your grazing by 50
percent,'' in some cases 75 percent. And they said, ``Well,
what happens if we do not?'' And he said, ``Well, I will reduce
you 100 percent, then.''
So with a gun at their head, they say, ``OK, we will accept
that because we have to.'' And then when you ask them about it,
they do not want to talk about it because they voluntarily
relinquished it.
Now, other districts--and I represent lots of ranchers and
have over the years--they do not want to ever take that. But in
subtle ways, the agencies in other districts do it, too, but
none of them with the heavy-handed approach that Mr. Furtado in
the Battle Mountain District has done.
Mr. LaMalfa. Thank you. My time is up on that.
I recognize Mr. Grijalva for 5 minutes.
Mr. Grijalva. Thank you.
Sheriff Perkins, thank you for the--I guess you deputized
me. Right?
Sheriff Perkins. Well----
Mr. Grijalva. No. I am just kidding. Scared you for a
second.
[Laughter.]
Sheriff Perkins. You need to have 20 hours of training
before I can legally do that.
Mr. Grijalva. And I understand, having been a county
supervisor and commissioner in Pima County in Arizona, the
tension that is inevitable between the Federal agencies and the
county agencies and state agencies.
But I thought your point was well taken in terms of law
enforcement, search and rescue, first responder activities,
that there has to be a level of cooperation, memorandums of
understanding, whatever is necessary to make that part of the
service that is provided to the public excellent like you want
it. And it requires not only good working relationships but to
the point of even memorandums of understanding that have to be
developed.
I say that because we had a tragedy in one of our national
parks. A ranger was killed by drug runners. Very unfortunate.
But what was discovered was one of the reasons was that we did
not have the frequencies, the intermodal frequencies, between
the communications between the county sheriffs, the state
police, and the National Park Service rangers that were also
responsible for patrolling that part of it.
From that came many better understandings, intermodal
communications where everybody can talk to each other. So
Sheriff, for myself your point is very well taken. I think that
level of cooperation, if it does not happen voluntarily, should
be required in terms of that response that you have to have for
the public. Thank you.
Commissioner Gerber, I was just going to ask you a
question. This whole controversy that happened, did you support
Bundy through that whole process?
Mr. Gerber. I did not go to it down there. I know Mr.
Bundy. I know the Bundy family. Back in the 1980s, when they
began eliminating all the other ranchers, Mr. Bundy was the
only one that finally said, ``Hey, I have had enough.''
Mr. Grijalva. Physically. But as a Commissioner, did you--
--
Mr. Gerber. No.
Mr. Grijalva [continuing]. Because you made public comments
that it was--``I truly honor his courage and desire to protect
his rights'' ? I mention that because part of the situation in
being able to work with any agency--we saw some pictures,
isolated pictures, of the heavy-handedness of law enforcement
under the Park Service or BLM. But there were also very graphic
pictures of militia folks supporting Bundy on the highway,
pointing weapons at U.S. Marshals.
That kind of a confrontation, I think, is something none of
us want. And there was a court ruling that was being
effectuated that he owed $2 million worth of grazing fees. And
99 percent of all other grazing permits are paid for, and I
would suggest that if that is the level of the rhetoric, then
opening up the doors to BLM and having a discussion--I think
both sides would be very cautious.
Mr. Gerber. And I agree with you, Congressman. It is a
terrible situation. But I want to make it clear that in the
1980s, Mr. Bundy was paying the BLM, and it was not until they
in effect were eliminating all of his neighbors' grazing and
eliminating his grazing that he finally said, ``I am not
leaving.'' And so the history on that is not necessarily
correct out there because he tried to pay, and they would not
accept it.
Mr. Grijalva. Yes. I know. But the point is, as you said,
the Founding Fathers--the point being that in their wisdom, to
be three divisions of government, the judicial, who is just the
important arbitrator on the law, the key arbitrator, ruled
against that argument you just had.
I do not want to make this an argument about Bundy. Some
people do not pay their bills. So with that, let me yield back.
Mr. Gerber. The ranchers that--could I answer that?
Mr. Grijalva. I yield back, but it is up to you.
Mr. LaMalfa. The gentleman may respond.
Mr. Gerber. The ranchers that I am here speaking for have
always paid their grazing fees, have always done everything the
BLM asked them to do, until he said, ``This year you have to
take all your cattle off,'' and they recognized it was going to
destroy them. They have still followed the rule.
So the point I make is that we cannot allow the BLM to
destroy the livelihoods of all these people on the whim of a
BLM bureaucrat that is not even following his own rules.
Mr. LaMalfa. Thank you for finishing.
Mr. McClintock.
Mr. McClintock. It seems to me whether Mr. Bundy was right
or wrong, the question occurs, was the BLM response reasonable?
I think anyone who watched that unfolding fiasco can answer it
was completely insane.
It seems to me that a local law enforcement agency that
knew the circumstances, knew the people involved, would
exercise much better judgment 9 times out of 10 than we saw out
of the BLM. So I ask again, why are we arming land managers?
Should that not be the responsibility of local law enforcement?
Sheriff Perkins?
Sheriff Perkins. You are absolutely right, 100 percent
right. If that would have been turned over to the county, it
would be done today. There would not even be an issue. We would
not be talking about it.
And I have had situations with the Forest Service just
recently where we did have some issues on the Forest Service
with some stolen timber. And they come to me, and I helped them
solve that case, and it ended up not being a big horrible thing
like you have seen on TV with the Cliven Bundy thing. You are
absolutely right. I agree 100 percent.
Mr. McClintock. Is there anything that you can see that
would advise us not to simply contract out law enforcement
duties on the Federal lands to the local law enforcement
agencies?
Sheriff Perkins. Now, ask me that again? I'm sorry.
Mr. McClintock. Is there any reason why we should not
contract out law enforcement on Federal lands to the local law
enforcement?
Sheriff Perkins. There is every reason why you should. You
are going to get better law enforcement, and it is going to be
a lot cheaper.
Mr. McClintock. Say that again?
Sheriff Perkins. You are going to get better, more
effective law enforcement, and it is going to be cheaper.
Mr. McClintock. I am quite sympathetic to Mr. Gerber's
concern that the best way to resolve these issues is to divest
surplus land that the Federal Government has done an absolutely
terrible job managing.
And I have the Rim Fire area in my district, 400 square
miles destroyed by forest fire because we have not thinned the
forests in that region in 30 years. We have seen an 80 percent
decline in timber harvests across the Federal--the National
Forest lands. And in those 30 years that we have seen an 80
percent decline in the timber harvest, we have seen a
concomitant and proportional increase in acreage destroyed,
utterly destroyed, by forest fires.
So it is quite clear to me the Federal Government is not
properly managing the vast bulk of the lands that it holds and
divestment is certainly advisable. But on those lands that we
do not divest, it seems to me that at least we ought to restore
local control over law enforcement decisions to the agencies
that are directly responsible to the people in the community.
Sheriff Perkins. Well, I agree. And I would take that
responsibility on if it was, you know, absolutely. I do it now
anyway.
Mr. McClintock. Thank you. I yield back.
Mr. LaMalfa. Thank you. Are there any other questions of
our Members of the dais here? OK, we will bring in our next
panel, our Panel II. But I would like to have just a quick
follow-up. The gentleman from Utah please feel free to be
excused. I want to ask Mr. Gerber one more thing for about 90
seconds while the other panel comes on up. So thank you,
gentleman.
Mr. Gerber, we were talking about the voluntary non-use
before I ran out of minutes a little bit ago. It did not sound
very voluntary. That was Battle Mountain, you mentioned?
Mr. Gerber. Yes, in fact, it is all over the state but in
Battle Mountain it is so egregious that when they--when Mr.
Furtado goes to one of those and says, ``We want you to reduce
your grazing,'' if they say, ``No,'' he gives them a 100-
percent cut.
Mr. LaMalfa. Do you have that in your written testimony
that you have submitted?
Mr. Gerber. Yes.
Mr. LaMalfa. OK. We would love to have any more follow-up,
Chairman Bishop here, or my office as well, specifying some of
this treatment.
Mr. Gerber. And most of those ranchers know that they have
to deal with Mr. Furtado again next year, so they are really
afraid to say anything because he will cut them further. But
the six ranching families that I have been involved with on
this issue this last 3 or 4 months, they got 100 percent cut so
they had no fear anymore of him cutting them further. Otherwise
they would not have fought.
Mr. LaMalfa. OK. Mr. Gerber, thank you again to our first
panel here. Let's please seat the second panel that had been
introduced earlier by our colleague, Mr. Pearce. So we will
proceed.
Here again we are going to be up against another Floor
vote. They are saying approximately at 4:40, but we will stick
with this panel and get through the opening round of testimony.
And we will see where we are at that time.
OK, very good. Panelists, thank you for joining us here. I
will go ahead and recognize for 5 minutes the Commissioner from
New Mexico, Otero County, Mr. Ronny Rardin.
STATEMENT OF THE HON. RONNY RARDIN, COMMISSIONER, OTERO COUNTY,
NEW MEXICO
Mr. Rardin. Thank you, Mr. Chairman and committee members.
We are kind of losing our committee up there, dwindling down.
But I am going to go a little different----
Mr. LaMalfa. Well, reminded, this will all be on the record
and all available for the permanent record. So that makes that
important, so thank you.
Mr. Rardin. I am going to go in a little different
direction. As an elected official, I have been two terms, two
full terms almost. I am going on my 15th year this year, and I
will finish out in 16 years as a commissioner. And what I want
to say to the committee, and to Washington as a whole, is there
is an old saying my dad used to teach me. He goes, ``Figures do
not lie, son, but liars use figures.'' And it took me a long
time to figure what he really meant by that, but what he meant
was we really need to stand back and look at the issues this
country is facing. We can point names and say this one is a
bully and this one is not.
And I have seen that change from 1992 to 2000 when I was a
commissioner, the first 8 years. I took office again in 2008.
And in my testimony, I tell you the first 8 years, we did not
have to raise taxes ever. We worked with the BLM and things got
done. And RS-2477 roads were recognized. And we really had a
good working relationship.
When I came back in 2008, different faces, different names,
same rules. I love FLPMA. And I think it is a great Act of
Congress, but it is not being imposed properly in New Mexico,
especially in Otero County and in all these other places.
And so the problem has become, in my opinion, an oversight
of an elected official over the employees. And what I like to
think about is if the Commission--and my Commission is only
three men, actually one lady and a man, three persons, if we
went down and set policy and just left and never came back, a
year later we would have total chaos within our little county
because we deal with the public on an everyday issue all the
time.
And that is what I see going on here is I really wish the
Congress would look back and see where the weak spots are. And
I believe it is the oversight. I do not believe being elected
you have to go back to your constituents, as I do, and convince
them that you are doing a good job. And then when you are, you
get re-elected. If you are not, you do not. And what I see
happening is there is no oversight out there. So these
agencies, they will get their feelings hurt. They will not like
what we are doing or they have an agenda of their own that is
not a multiple-use agenda, not a multiple serving everybody,
but it serves one person.
And I will give you an example. The Agua Chiquita that was
mentioned earlier by Congressman Pearce, they are keeping out
180 cattle, but they are letting 10,000 non-indigenous elk jump
the fence, which causes 10 times more damage than walking into.
And there are not 10,000 in that area but there are 10,000 in
the whole area. So we do not know how many, 200, 500 head can
come in there at night and water. They are letting them get in
the same area, and saying we are managing, when they have
forest fires that are the number one threat to this mouse.
And then the second threat is the animals. And they are
letting the animals that can threaten destroy it, but the ones
that they can manage, they are kicking out. And to me as a
commissioner, it kills us because we have a very small budget.
We do not say federally owned because there are really only two
parcels of land that the Federal Government owns in Otero
County. There is 88 percent of it which is managed by the
Federal Government. But when I checked with the GSA here in
Washington, they gave me a book and showed how much land the
Federal Government owns. They own Holloman Air Force Base. It
has been ceded to them. And they own 40,000 acres on a bombing
range. The rest of it, they just manage.
It is still the proprietary right that we have over law
enforcement. We do not have that problem in our county with law
enforcement because we know that our understanding of law
enforcement is through that situation, but what I am saying is
when these managing agencies come in, and they take away even 2
percent of a budget that is only 12 percent that manage a $30
million budget a year, it hurts us dreadfully. So we have to--
we have to do multiple use.
Could I hand my FLPMA down there, please, my book? I am
sorry, I forgot to get that. I handed out a FLPMA book to you.
And I know you all read FLPMA, and you understand FLPMA, but
what I try to tell our director for the state, I give him Title
7 of FLPMA. And you have it, and it is tabbed on yours and it
is even highlighted. I highlighted yours. But Title 7 of FLPMA
says, the act of FLPMA, it says, ``Nothing in this Act, or in
any amendment made to this Act,'' this is Congress made this,
``shall be construed as terminating any valid lease, permit,
patent, right-away or other land use or authorization existing
on the date of approval of this Act.'' Which we all know is
1976.
And the second--(b) says, ``Nothing''--``Notwithstanding
any provision of this Act, in the event of conflict with, or
inconsistency between the Act, the Act of August 28, 1937,
insofar as the related management of the timber resources and
disposition of revenues of the lands and resources, the latter
Act shall prevail.'' And this is what has happened. They are
not prevailing.
[The prepared statement of Mr. Rardin follows:]
Prepared Statement of Ronny Rardin, Commissioner, Otero County, New
Mexico
Chairman Hastings, Subcommittee Chairman Bishop, and members of the
committee: I am an elected official at the county level and have been
elected and re-elected by my constituents 10 different times with an
opponent in each race. When I finish my term in 2016, I will have had
the privilege of serving the public for a total of 16 years.
I remember a time when the BLM and Forest Service worked together
with local officials and parties of interest to use the current laws
and regulations to make Otero County and this country a better and
safer place to live. Today I long for those days to come again.
Sadly I am here today to testify of what I have witnessed over the
past 20 years. Instead of growing together under the current laws such
as FLPMA, those laws have had the opposite effect. The Federal
Government agencies (BLM, FS) have evolved into the problem we face
today, instead of the solution we can turn to.
The 1976 FLPMA was passed and introduced to America and since then
it has been many things to many people.
FLPMA, when followed correctly, can be a useful tool to assure
local government and groups a part of management of their lands within
their said county. However, let me assure you that what FLPMA has
become is a tool for the agencies to use and hide behind with no
oversight from any elected officials, Congress included. This has
become the normal day-to-day way the bureaucracies control and
devastate the local government's ability to do our job, destroy the
very Customs and Cultures of the people who elect us, and in the name
of ``Preservation'' cause total devastation. If this is not corrected
soon, there will be irreversible damage to this country as a whole.
Here are two examples of what has happened in Otero County in just
the past 4 years:
1. In southern Otero County, we are blessed with minerals, oil and
gas, resources that have never been developed in Otero because we have
always had plenty in the logging, cattle and agriculture industry.
During my first 8 years in office, (1992-2000) the Board of County
Commissioners never had the need to ask one time for a tax increase.
During my second 8 years in office (2008-2016) the Board of County
Commissioners has had to raise taxes twice to just maintain the
services we have to the public.
Approximately 2 years ago, a company called Gulf Coast Mining came
to the Commission and laid out a plan that would create 150 jobs by re-
opening an existing Oro Grande mine. All they planned to do was to
clean up the tailing of Oro Grande that was left over from the mining
done at this site in the 1800s.
David Davidson, an owner of Gulf Coast Mining Company, has produced
an 1897 grant signed by the President giving this mine, Iron Duke, a
right of way to cross Territorial Property. This grant has been shown
to the BLM with no resolve. BLM refuses to recognize any grant to this
day.
Furthermore, the leadership of BLM, State Director Jesse Juen and
the District Manager Bill Childress, as well as other employees of the
agency, not only refused to allow this company access to their private
property, but to this day has refused to settle with them and allow
Gulf Coast to use a ``DIRT'' road that had existed 80 years before
FLPMA became law.
BLM is currently in a lawsuit with Gulf Coast for an alleged
trespass that occurred on vested private property right of way owned by
both the county and the mine.
At first BLM stated that if Gulf Coast paid a $250,000 trespass
fee, then they would allow a permit to be issued to allow them to use
this road. When Gulf Coast chose to challenge their decision, the BLM
tried to coerce Gulf Coast by raising the trespass fine to $750,000 if
they lose.
Otero County took a bold stand and we forced the BLM to give us a
permit for the road recognizing and preserving our existing vested
rights. However, it wasn't until we took heavy equipment out to the
road and started to fix our road that BLM decided to made a deal where
Otero County could allow whoever they wanted to cross the road, but not
without restriction from BLM. True to form, the first time the county
went to maintain the road, BLM stopped the crew and changed the rules
again.
I have some maps of the area if the committee would like to see and
get a better understanding of the situation they can be supplied later.
The bullying did not stop there. There is a section of land in this
area, which the road crosses also, that is managed by the State Land
office. The BLM seemed to have settled down, but the State Land office
refused to issue a permit for their area until Gulf Coast paid the BLM
the $750,000 in fines. BLM claims they knew nothing about this, but it
fits in with what these agencies have become and what we have to deal
with every day.
Had FLPMA been followed, Gulf Coast would have been exempt and we
would now have 150 new high paying jobs in Otero County. Instead we
have no jobs and Otero County tax payers are out thousands of dollars
spent on attorneys trying to resolve an issue that should have been
handled at the local level within 30 days.
2. Forest Service: the Forest Service has evolved into a machine
that is totally controlled by Washington and they use the Endangered
Species Act to force an ``agenda'' that has obviously taken an attack
on the ranching community in our country.
They have ignored the voice of the local people to force on us a
management scheme that has cost the people of New Mexico and this
country dearly. In the name of FLPMA and ESA, they have taken away
thousands of jobs, burned millions of acres, become one of the biggest
contributors of pollution in our country, and killed millions of
animals in forest fires, some which are on the ESA list, all the while
calling this good government.
Now they are taking private water rights away from local citizens
by fencing off their water and calling it conservation for wildlife.
However, the FS was never given any authority to manage wildlife, and
in doing so, they are going against our Constitution and the very
rights this Nation has fought to protect.
Agua Chiquita is a small area in the Sacramento Mountains where
ranchers have grazed since before the 1900s. This small spring, called
the Barrel Springs, has served the cattle and animals for hundreds of
years. There are times it runs dry and times it has plenty, and for
years there has been a wire fence around it, which had gates that could
be closed if need be, but have always been reopened to allow all
animals to use the waters.
Recently the Forest Service went up and fenced off the area with
metal pipe fence and the only animals unable to obtain any water is the
cattle of the local rancher who have used this water for years and
years.
Please understand that we have over 10,000 head of non-indigenous
elk in the area, thousands of mule deer, bears, and feral hogs, and
hundreds of species of smaller animals who all water at places like
these. The rancher in this area only has, at the most, 180 head of
cattle.
Elk will easily jump 6 foot, as will deer, and the hogs can go
through the fence, but the cattle are fenced out of water that
rightfully belongs to the rancher according to the history and laws of
this Nation.
When the elk and deer jump into this protected area, they now will
destroy much more than by simply being able to walk in and walk out.
The FS says they are protecting the habitat for the New Mexico jumping
mouse, but this makes no sense.
Now, before the New Mexico jumping mouse was even listed, the FS
was being funded by the NM Game and Fish to put this fence up, but the
NM Game and Fish decided to withdraw on this issue and they pulled
their funding. So the FS went out and solicited private money to build
this fence and it is now a reality. The New Mexico jumping mouse was
listed and the gates were shut by the FS. All of this is
unconstitutional and should never have been what the FS spends their
time on.
The County Commission became involved and tried to find a solution
to this situation. After running into a brick wall with Travis Mosley,
the local supervisor, we were invited to meet with the U.S. attorney's
office.
We hoped to solve this by simply allowing the gates to open until
the local rancher could go into the ``protected area'' and pipe their
water out so both sides could be served. However, all the U.S. attorney
wanted from the county was for us to go back and settle down the people
and make sure the Federal Government employees were protected while
they did their job. We asked if they could just open the gates for 30
days until we could get this water piped outside the fenced area and
the answer was NO. Further, they also made it a point to exclude
Congressman Pearce from the meeting stating that there would be no
meeting if the Congressman chose to try to attend. The reason for the
meeting was simple, they wanted to threaten the county and its sheriff
not take action or we would be facing criminal prosecution and lawsuits
for any action to allow a private citizen to access their private
property.
After this I decided to break all working ties with any Federal
agency. I made that in form of a motion at our regular County
Commission meeting this July and only part of it passed, but my point
is we have a broken system. I truly don't believe it started off that
way nor was FLPMA or the ESA ever intended to do what it has done to
this Nation, but it has devastated us in its present form. Unless and
until we can receive proper oversight from Congress for these Federal
employees that act maliciously or our citizens can be given the tools
to stand up to the bullying themselves we are fighting a losing battle.
Mr. Chairman and members of the committee, you have the power and
the duty within your elected offices to hear the citizens of this
country and to take action and fix what is an obvious problem that is
plaguing our Great Nation. This will certainly be the destruction of
the greatest Nation on earth if you don't act now.
I pray you will take this testimony to heart and act accordingly. I
look forward to working with you to resolve this and put this Nation
back on track.
Thank you.
______
Mr. LaMalfa. We are going to go on time here.
Mr. Rardin. I am sorry, I apologize.
Mr. LaMalfa. So we will follow-up on a later round, OK.
Alright, Mr. Blair Dunn, you are up next, please, for 5
minutes.
STATEMENT OF BLAIR DUNN, ATTORNEY, ALBUQUERQUE, NEW MEXICO
Mr. Dunn. Mr. Chairman and members of the committee, thank
you. I would like to start by discussing some agreement and
disagreement with what the Ranking Member started out with.
This is about relationships. It is not about disagreements over
policy. This is about inability of Federal employees, Federal
agencies, Federal bureaucrats not following the laws.
I am going to refer back to the Agua Chiquita matter that
has been in the news so much. And by way of background, I do
represent Otero County, but I also represent farmers and
ranchers across the state of New Mexico and in the western
United States. I also represent non-profit organizations
concerned with property rights and environmental issues, such
as Protect Americans Now, people like the cattle growers, who
are also represented here on the panel. So this is not a
singular issue. It is one that is very widespread across the
western United States, affecting lots of communities and lots
of individuals.
But when you look at the Agua Chiquita, one of the major
things that has happened is the Forest Service even knowing
what the law is in New Mexico concerning water rights ignores
that. I have had previous hearings. We have had previous legal
disputes with the Forest Service. They understand that in New
Mexico that these water rights in question are actually what we
would call pre-1907 water rights. It does not mean that they
have to be on file with the state engineer's office, but they
are still vested private property rights.
And the deal in the Agua Chiquita, what they got everybody
so stirred up there was that the Forest Service came--despite
the fact that these private property rights exist--and fenced
around them.
Now, there was some discussion from Congressman Pearce
about whether or not the access was reasonable. And the county
felt that the access was not reasonable. I think the ranchers
felt that the access was not reasonable. But at the end of the
day, it was still their private property. It was still the U.S.
Forest Service ignoring the laws of the State of New Mexico
when it comes to water, which they are supposed to follow, and
coming in and ignoring those laws in order to trample private
property rights.
What we are here today is not to discuss whether or not the
Endangered Species Act is proper or functioning as it should.
What we are discussing is when they do not follow that, when
they do not follow NEPA, what is the recourse to local
governments, to private individuals when a Federal agent or
Federal employee tramples their rights? That is the issue
today.
And, unfortunately, when the Forest Service and other
Federal agencies do not follow these laws, the effects are more
far-reaching than just one instance. In a minute you are
probably going to hear discussion about people picking on the
Forest Service, but that is really not the case. It is a matter
of when the Forest Service puts out mis-information or they
mis-use the law, it tends to mis-lead other members of the
public into believing that somehow it is the ranchers doing
something wrong or it is the county picking on the government,
Federal Government. That is not the case. These are private
property rights, and the Forest Service sometimes tramples
them. The BLM sometimes tramples them and takes them.
What we are looking for is a solution that would enable
oversight to come from something other than just Congress. You
guys have a lot of work to do, and the Federal Government is
expansive and broad. We need a solution that empowers the
people, empowers local governments when we have a bad apple to
step in and take some action to hold them accountable. That
oversight is one of the things that Congress is supposed to do,
and they cede that back to the private individuals and give
private individuals the ability to go to court to protect their
rights or to re-gain or remedy some of what has happened to
them.
There are a host of other instances that we could cite to
and discuss, some of which are in my written testimony. But at
the end of the day, that is what we are talking about--
oversight and providing an alternative so that the public can
take matters into their own hands and take it to court if need
be.
I will yield now.
[The prepared statement of Mr. Dunn follows:]
Prepared Statement of A. Blair Dunn, Esq., Attorney, Albuquerque, New
Mexico
Chairman Hastings, Subcommittee Chairman Bishop, and members of the
committee: my name is A. Blair Dunn. I am an attorney and a fifth
generation agriculturist in southern New Mexico. My family, to this
day, raises cattle and horses on a ranch that includes private land,
Bureau of Land Management (``BLM'') land and New Mexico State Land. My
law practice focuses on assisting those involved in agriculture,
natural resource use, and conservation. My family has long been
involved in the legislative process and active in government. My
grandfather, a long time legislative finance chairman for New Mexico,
would have told you that the business of government is much like the
business of tending to the apple orchard, where myself and many of my
family were raised. Growing apples consists of watching out for the
good and the bad, and getting rid of the bad apples so the good ones
don't spoil; government should consist of watching for the good ideas
by getting rid of the bad ones, allowing the good employees to thrive
while getting rid of the rotten ones that destroy the whole bushel.
This applies to what we are here today to discuss, overseeing the
business of Federal agencies and their employees. One of my clients is
Otero County in New Mexico. You just heard from one of their
commissioners regarding the trouble that their county is subjected to
as a result of those within the Federal bureaucracy that would use
their power in a heavy handed or malicious way that violates civil and
constitutionally guaranteed rights. Otero County has sent pleas to this
very committee for congressional inquiry and oversight into what is
happening in their county, and what is happening in their county is far
from an isolated incident.
Otero County, like many others, is crying out for congressional
oversight into the harms caused by those bad apples that misuse the
power of the executive in a way that harms or interferes with private
property rights. Such oversight of executive agencies is a crucial
component of ensuring a well-run government. Such oversight has long
been held to be an implied authority of Congress derived from the rest
of the legislative functions of Congress, as delegated by the U.S.
Constitution.
To say that our Federal Government is large and extensive is an
understatement, and would not do justice to the state of our affairs.
To that end congressional oversight into the activities of the few bad
apples runs counterintuitive to reality. Without a doubt, it must be
agreed that the majority of Federal employees are dedicated and
hardworking individuals that are trying to do their jobs to the best of
their abilities in keeping with the direction and mandates of U.S.
Constitution and Federal laws. However, a well-crafted tool to assist
Congress in overseeing and addressing those that would abuse their
power to violate the civil and constitutional rights of the citizens of
the United States is sorely missing. Some would say that such a tool
does already exist, and has existed for many decades, in the form of
The Civil Rights Act of 1871, which prohibits governmental employees,
``acting under the color of state law,'' from proximately causing the
depravation of certain constitutionally guaranteed rights. However, The
Civil Rights Act of 1871 only applies to state officials.
i. background on case history and effects of previous decisions on
current interactions between the public and federal employees
This committee has previously heard testimony from Ms. Karen Budd-
Falen. I have reviewed her testimony and the cases to which she cites.
I concur with her analysis of both Bivens v. Six Unknown Federal
Narcotics Agents, 403 U.S. 388 (1971) and its role in Wilkie v.
Robbins, 551 U.S. 537, 577 (2007). For purposes of this testimony I
will not belabor the important work of this committee by again reciting
that analysis, but would respectfully offer that I incorporate her
legal analysis in my testimony and adopt her legal opinion as
concurring with my legal opinion.
Ms. Budd-Falen offered in her testimony that the Robbins case ``now
acts as a complete bar to the judicial branch of government, regardless
of the extreme nature of the Federal officials actions,'' and I would
for the most part agree, certainly inasmuch as it does act as a
complete bar to actions seeking to address conduct by Federal employees
using the authority of their offices to violate private property rights
outside of the mandates of the Fifth Amendment. But I would
respectfully offer to the committee that her analysis falls short of
the full effect of the decision without the subsequent action that the
Court offered Congress should undertake:
We think accordingly that any damages remedy for actions by
Government employees who push too hard for the Government's
benefit may come better, if at all, through legislation.
``Congress is in a far better position than a court to evaluate
the impact of a new species of litigation'' against those who
act on the public's behalf. And Congress can tailor the remedy
to the problem perceived, thus lessening the risk of a rising
tide of suits threatening legitimate initiative on the part of
Government's employees.
551 U.S. at 562. Citations omitted. Thus, instead of acting as a
complete bar, such precedent now serves to embolden Federal employees
to reach even further in abusing their power to violate private
property rights absent oversight and legislation from Congress. An
overreaching or maliciously acting employee runs little risk of
retribution from their acts. Behaviors of threatening or cajoling, as
you have heard about from others here testifying today, are allowed to
proceed under a stronger cloak of immunity.
For example, one of my clients, El Capitan Precious Metals, Inc., a
mining company in southern New Mexico that is seeking to utilize new
technology to create industry and jobs in the local communities, has
been subjected to threats and cajoling by the U.S. Forest Service
employees. El Capitan is seeking to rework and reopen the mining claims
on private property that they now own, some of which are hundreds of
years old. Incidental to the claims to patented lands are vested rights
of ingress and egress to their fee simple property that is surrounded
by National Forest lands. Pursuant to the laws of this country, their
predecessors owned a vested private property easement across forest
service lands to access their private property. Now after 100 years of
use on the \3/4\-mile road, upon which their vested easement runs, they
are being told that they have no right, that they must go thru the NEPA
process and they must purchase a special use permit to use the road.
The road has literally been in use since 1914 and the Forest Service is
telling them they must go through a lengthy and expensive NEPA process
to continue use of the \3/4\-mile road from the highway to their mine.
At one point they were threatened with charges of criminal trespass for
mine employees utilizing their private property easement. They have
repeatedly been cajoled to abandon their private property rights and
just take a special use permit for the road. Such actions, if done by a
state employee, would certainly have prompted a civil rights claim for
the attempt to deprive them of their private property right. Instead,
they are left seeking other less immediate remedies of pursing Federal
litigation for a taking and hopefully a short term remedy to provide
them continued access to their private property, but in the mean time
they run the risk of the loss of their business or even criminal
prosecution for using their vested easement. I can point to other
examples from clients seeking Federal grants of inspection harassed
only because the Federal employee disagreed with the species of animal
they intended to harvest. All of these types of actions harm not only
the specific individual or companies, but also harm local rural
economies and cost communities much needed jobs.
The public trust in government should be a sacred thing to Federal
employees. I think that to most of them it is. But for those that would
abuse the power they have been given, the public deserves an avenue to
provide oversight, the public deserves a ticket to the door of the
court house to seek a remedy for their damages. As has been previously
cited, the Robbins's dissenting opinion discussed the merits of a
narrowly tailored cause of action to provide and found merit to such an
action:
Adopting a similar standard to Fifth Amendment retaliation
claims would ``lesse[n] the risk of raising a tide of suits
threatening initiative on the part of Government's employees.''
Discrete episodes of hard bargaining that might be viewed as
oppressive would not entitle a litigant to relief. But where a
plaintiff could prove a pattern of severe and pervasive
harassment in duration and degree well beyond the ordinary
rough-and-tumble one expects in strenuous negotiations, a
Bivens suit would provide a remedy. Robbins would have no
trouble meeting that standard.
551 U.S. at 582. Internal citations omitted.
I can say without reservation that three of my current clients
would directly fall into this category of people maliciously harmed by
an abuse of power by Federal employees, and I can say with absolutely
the same lack of reservation that all three of them would never reach a
point of needing to file a cause of action. I say that without
reservation because I firmly believe that such options as are being
discussed here by this committee would serve to deter many instances of
abuse of power and would incentivize the agencies to ensure that the
proper checks and balances were in place to prevent such an abuse of
power.
An argument can be made that the creation of new causes of actions
would cause a flood of Federal litigation, burdening the Courts and
costing tax payers money. But such an argument leaves aside the fact
that these causes already exist against the state employees. Further,
one must give weight to the simple argument that if the harm is not
occurring, then citizens will have nothing to bring a claim on.
A claim (similar to a Section 1983 claim) must include the
components of a right that is possessed by a person that has suffered a
deprivation of said right by an action carried out by a government
employee acting under the color of the law. The deterrence policy of
Section 1983 operates through the mechanism of compensation of the
actual damages suffered by the victim. See Carey v. Piphus, 435 U.S. at
256-57 (1978); Memphis Community School Dist. v. Stachura, 477 U.S.
299, 307, 106 S.Ct. 2537, 2543, 91 L.Ed.2d 249 (1986) (``deterrence is
also an important purpose of this system, but it operates through the
mechanism of damages that are compensatory'') (emphasis in original).
As the Supreme Court noted in Carey, ``[t]o the extent that Congress
intended that awards under Sec. 1983 should deter the deprivation of
constitutional rights, there is no evidence that it meant to establish
a deterrent more formidable than that inherent in the award of
compensatory damages.'' 435 U.S. at 256-57. Tinch v. City of Dayton, 77
F.3d 483 (6th Cir. 1996) See also Medina v. Pacheco, 161 F.3d 18 (10th
Cir. 1998) (recognizing the deterrent value of section 1983 of the
Civil Rights Act).
ii. proposed language
I have also reviewed the following proposed language for a statute
that could be enacted to protect private property owners from
intimidating or cajoling behaviors by Federal employees acting under
the color of law:
The attempted taking of private property or private property
rights by means of governmental employee harassment or
intimidation, under color of law, is hereby declared to be a
violation of Civil Rights Act. Harassment or intimidation
against the owners of private property or private property
rights constitutes such violation when (1) a property owner's
relinquishment of his property or property rights is made
explicitly or implicitly a term or condition of receipt of a
permit or license from a governmental agency, (2) submission to
or rejection of such conduct by a property owner is used as the
basis for the grant of or conditions included in a permit or
license, or (3) the conduct of the governmental employee has
the purpose or effect of unreasonably interfering with an
individual's private property or private property rights. An
attempted taking of private property or property rights under
this section can be composed of a series of separate acts that
collectively constitutes a significant deprivation of the
ownership or use of private property or property rights. In
determining whether the activities of a governmental employee
are actionable under this section, consideration can be given
to the frequency of the discriminatory conduct, harassment or
intimidation, its severity, and whether such governmental
action interferes with the ownership, use or legitimate
investment backed expectations of the property owner.
Such narrowly tailored language would serve as a much needed
guidance post to Federal agencies. Imagine if, in considering fencing
around private property water rights, threatening local governments
with trespass for using vested easements, or cajoling a fifth
generation agriculturist to go along with a plan or lose his grazing
permits, the Federal employees also had to consider whether their
desired actions and behavior resulted in liability to the government
for damage to private property rights. Arguably they should already be
doing so in their oaths to uphold the Constitution, but in reality some
of them are not, with no fear of retribution for acting badly. I would
respectfully request that the committee consider what added
deliberation decisionmakers and supervisors would make when considering
a proposed action or statement made to a private land owner if they
must first consider the liability of violating a citizen's civil and
constitutional rights. Section 1983 claims under the Civil Rights Act
have been proven to encourage constitutional policing by local law
enforcement officers around the country; wouldn't it make sense to
encourage constitutional regulating and land managing by our Federal
agencies employees?
iii. the amount of bad apples versus good and giving the public the
tools to help congress provide oversight to federal agencies and
employees
By and large, these examples of Federal employees acting
intentionally to violate the private property rights of American
citizens are the exception, not the rule. But as you have heard from
testimony today, and will continue hearing well into the future, should
Congress fail to act to remedy this issue, the problem will continue to
grow. The Federal Government is broad in size, with thousands of
Federal employees; sorting through all of the employees to root out the
bad apples is a task that is beyond the capabilities of Congress to do
one oversight committee hearing at time. Congress should open the door
of the courthouse to the everyday citizens to help shoulder the burden
sorting out the bad apples and remedying the damages done by those that
would abuse their power.
______
Mr. LaMalfa. Thank you.
Our next panelist is Mr. Jose Varela Lopez.
Five minutes, please.
STATEMENT OF JOSE VARELA LOPEZ, NEW MEXICO CATTLE GROWERS'
ASSOCIATION, SANTA FE, NEW MEXICO
Mr. Lopez. Mr. Chairman, members of the committee, thank
you for the opportunity to come before you today. My name is
Jose Varela Lopez. I live on my family ranch, southwest of
Santa Fe, New Mexico. I am the 14th generation of my family to
do so, and I pray daily that I will not be the last.
I am president of the New Mexico Cattle Growers'
Association, the executive director of the New Mexico Forest
Industry Association, immediate past president of the New
Mexico Soil and Water Conservation Commission, vice chairman of
the Santa Fe-Pojoaque Water Conservation District, and a former
Santa Fe county commissioner.
As you know, we are here today to talk about bullying and
abuse of citizens at the hand of the Federal Government.
Unfortunately, this is a story that is all too familiar,
ranging from the IRS scandal to the mistreatment of veterans,
the failure to protect dignitaries in foreign lands, the
protection of private information, the collapse of security on
the Mexican border, and most recently the failure of the CDC to
protect their own employees. And you can add to that the
treatment of Americans by the U.S. Forest Service, the U.S.
Fish and Wildlife Service, the Bureau of Land Management, the
Army Corps of Engineers and others.
I am not here to tell you that every employee of these
agencies is rogue, but I can tell you that the agencies are
permeated with employees who wantonly violate the rights of the
rural citizens of this country and their small businesses,
entities that provide economic stability to the majority of the
counties in our great Nation.
As Cattle Growers' president, we are dealing daily with
individual and collective efforts to remove families like mine
from the land. The worst part is that we have no recourse. New
Mexico has been a hotspot not only for catastrophic wildfires
resulting from lack of management by Federal agencies but also
for species listings which affect natural resource users.
Endangered species protection is the biggest culprit. At
the moment, the Fish and Wildlife Service is considering
critical habitat for the Lesser-Prairie Chicken, the New Mexico
meadow jumping mouse and two varieties of garter snakes.
Expansion of the Mexican wolf habitat is expected as early as
tomorrow.
We have had 764,000 acres in New Mexico and Arizona
recently designated critical habitat for the jaguar, although
only a few male jaguars have been sighted in the United States
over the last 60 years. We are awaiting the listings and
designations for the Canadian lynx and the wolverine even
though those species do not exist in our state.
But that is just half the story. New Mexico has been a
hotbed for land use designations. The most recent transgression
is the Organ Mountain-Desert Peaks National Monument,
encompassing some 550,000 acres in the southern part of the
state bordering Mexico. Add to that the recent Rio Grande del
Norte National Monument of 250,000 acres and the Rio Mora
National Wildlife Refuge and Conservation Area of 800,000
acres. There are also proposed designations for national
monuments and wilderness expansion of 1.3 million acres.
Each of these listings and designations provide the
opportunity for Federal overreach and the violation of our
rights as citizens. And there is no recourse. Federal agents
are literally taking the food out of the mouths of rural
families and Americans as a whole. I believe my civil or
constitutionally guaranteed rights are violated by a local--if
I believe my civil or constitutionally guaranteed rights are
violated by a local or state agent, I have the right to my day
in court where a judge and a jury will have the opportunity to
hear both sides of the story. If those agents have crossed the
line, they are held personally liable.
Not so with Federal agents. Under current law, Federal land
management employees hold the same immunity from the law as
diplomats and are above any law. That is patently inequitable,
can be discriminatory and violates the humanitarian ethics we
strive to live by. There is no accountability for those who use
the power of their employment against people like me.
A report done by the U.S. Department of Agriculture in June
of 2013 documents the fact that the U.S. Forest Service
employees in Regions 2 and 3 routinely violate the civil rights
of allotment owners in New Mexico and Colorado. The report
states that a detailed corrective action plan must be developed
within 60 days of receipt of the report. As of today, to my
knowledge, nothing has happened.
In closing, our government agencies are punishing natural
resource users through unnecessary land use designations and
restrictions prompted mainly by radical environmental groups.
The preservationist mentality is making it difficult, if not
impossible, for renewable resource users to make a living and
is in effect extinguishing the customs and culture of our
country's land-based people.
Thank you for your time and attention. We look forward to
working with you to resolve these issues so our families can
continue to feed ourselves and the rest of the world.
[The prepared statement of Mr. Lopez follows:]
Prepared Statement of Jose J. Varela Lopez, on behalf of the New Mexico
Cattle Growers' Association
Chairman Bishop, members of the committee, thank you for the
opportunity to come before you today. My name is Jose Varela Lopez. I
live on my family ranch southwest of Santa Fe, New Mexico. I am the
14th generation of my family to do so and I pray daily that I will not
be the last.
I am president of the New Mexico Cattle Growers' Association, the
executive director of the New Mexico Forest Industry Association, the
immediate past chairman of the New Mexico Soil & Water Conservation
Commission, vice chairman of the Santa Fe-Pojoaque Soil & Water
Conservation District and a former Santa Fe County Commissioner.
We are here today to talk about the bullying and abuse of citizens
at the hands of the Federal Government. Unfortunately, this is a story
that is all too familiar ranging from the IRS scandal, the mistreatment
of veterans, the failure to protect dignitaries in foreign lands, the
protection of private information, the collapse of security on the
Mexican border, and most recently the failure of the CDC to protect
their employees.
You can add to that the treatment of Americans by the U.S. Forest
Service, the U.S. Fish & Wildlife Service, the Bureau of Land
Management, the U.S. Army Corps of Engineers and others. I am not here
to tell you that every employee of these agencies is rogue, but I can
tell you that the agencies are permeated with employees that wantonly
violate the rights of the rural citizens of this country and their
small businesses, entities that provide economic stability to the
majority of the counties in our great Nation.
As Cattle Growers' President, we are dealing daily with individual
and collective efforts to remove families like mine from the land. The
worst part is that we have no recourse.
New Mexico has been a hot spot not only for catastrophic wildfires
resulting from the lack of management by Federal agencies but also for
species listings which affect natural resource users.
Endangered species ``protection'' is the biggest culprit. At the
moment the Fish & Wildlife Service is considering critical habitat for
the lesser prairie chicken, the New Mexico meadow jumping mouse and two
varieties of garter snakes. Expansion of the Mexican wolf habitat is
expected as early as tomorrow. We have had 764,000 acres in New Mexico
and Arizona recently designated critical habitat for the jaguar
although only a few male jaguars have been sighted in the United States
over the last 60 years. We are awaiting listings and designations for
the Canadian lynx and the wolverine even though those species do not
exist in our state.
Additionally, the Fish & Wildlife Service is taking their power to
a whole new level directing their employees in Region 8 NOT to follow
the current law, but rather to direct their resources to a program
created by a secretarial order issued in December 2010. We have not yet
located similar orders for the rest of the Nation, but are confident
they are out there.
But that is just half the story. New Mexico has been a hot bed for
special land use designations. The most recent transgression is the
Organ Mountains/Desert Peaks National Monument encompassing some
550,000 acres in the southern part of the state bordering Mexico. Add
that to the recent Rio Grande del Norte National Monument of 250,000
acres and the Rio Mora National Wildlife Refuge and Conservation Area
of 800,000 acres.
There are also proposed designations for a national monument on
Otero Mesa of up to a million acres, the La Bajada National Monument of
about 130,000 acres, Hondo/Columbine Wilderness at 60,000 acres, Pecos
Wilderness expansion of approximately 120,000 acres and the transfer of
the 89,000 acre Valles Caldera National Preserve from a multiple use
property to the National Park Service. Add to that existing wilderness
designations and wilderness study areas of 2.8 million acres and 4.6
million acres of inventoried roadless areas, areas of critical
environmental concern, special management areas and national
conservation areas.
In my own case, the BLM has been buying up private lands near my
family ranch within the boundaries of an Area of Critical Environmental
Concern that they designated as part of their Resource Management Plan.
They now refer to our ranch as an in-holding, meaning that we are now
surrounded by federally managed land and ostensibly the next ``willing
sellers.'' What this designation has done is de-valued our land and
effectively prohibits any type of future development on the ranch that
is not consistent with the BLM's Area of Critical Environmental
Concern. My takings protest to their headquarters was to no avail.
Each of these listings and designations provide the opportunity for
Federal overreach and the violation of our rights as citizens. And
there is no recourse. Federal agents are literally taking the food out
of the mouths of rural families and Americans as a whole.
If I believe my civil or constitutionally guaranteed rights are
violated by a local or state agent, I have the right to my day in court
where a judge and/or a jury have the opportunity to hear both sides of
the story. If those agents have crossed the line, they are held
personally liable. Not so with Federal agents.
Under current law, Federal land management employees hold the same
immunity from the law as diplomats, and are above any law. That is
patently inequitable, can be discriminatory and violates the
humanitarian ethics we strive to live by. There is no accountability
for those who use the power of their employment against people like me.
A report done by the U.S. Department of Agriculture in June of 2013
documents the fact that U.S. Forest Service employees in Regions 2 and
3 routinely violate the civil rights of allotment owners in New Mexico
and Colorado. The report states that a detailed Corrective Action Plan
must be developed within 60 days of receipt of the report. As of today,
to my knowledge, nothing has happened.
The hierarchy of the Forest Service and the BLM is such that it
seems nearly impossible for there to be justice for natural resource
users. In the case of the Forest Service there is no recourse. A
district ranger is generally the prosecution, judge, jury and
executioner. Decisions go up the chain of command, but are rarely
overturned.
The BLM does provide at least some way to appeal to higher levels,
but allotment owners go to those higher levels at their own peril
because retaliatory action at the field level is a real and constant
threat.
In closing, our Government agencies are punishing natural resource
users through unnecessary land use designations and restrictions,
prompted mainly by radical environmental groups. This preservationist
mentality is making it difficult if not impossible for renewable
resource users to make a living, and is in effect extinguishing the
customs and culture of our country's land based people. Besides, how do
you preserve a renewable resource?
Thank you for your time and attention. We look forward to working
with you to resolve these issues so our families can continue to feed
ourselves and the rest the world.
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.epsConsecutive years of reduced funding for the Ecological Services
Program have had a meaningful impact in Region 8. Workload associated
with sections 4, 7, and 10 of the Endangered Species Act (ESA) is
greater than our resources can address. To compound this problem, we
anticipate the demand for ESA permitting, listing, and recovery work
will increase in the coming years as the housing market improves,
natural resource needs increase, and listing petitions rise. We expect
this increase in workload to occur while renewable energy permitting
remains a high priority for the Administration and Department of
Interior. Given decreased staff resources and budgets, it behooves us
to craft a strategy for prioritizing workload. Ultimately, we need a
long-term strategy which may entail shifting resources throughout our
region to ensure that staffing is commensurate with our priority
assignments. As we formulate this long-term strategy, this memorandum
will guide deployment of our resources in the short term.
Regionally, our top priorities include Department of Interior
initiatives, preservation of health and human safety, and workload
required to meet our legal mandates. Our highest priorities also
include continued implementation of Landscape Conservation Cooperatives
and the surrogate species concept. Specific priorities encompass Tribal
trust responsibilities, Klamath water operations projects (including
the hydroelectric settlement agreement), the Desert Renewable Energy
Conservation Plan, the Bay-Delta Conservation Plan, the Central Valley
Project Operations and Criteria Plan, issues of national security,
projects related to flood prevention, projects related to fire risk
reduction, and communicating with the public through external affairs.
While these priorities comprise our regional focus, they do not provide
the fine-scale sideboards to determine how offices should prioritize
projects, and they do not all apply to each office within Region 8.
Thus, each office will need to prioritize its own workload within their
specific geographic priorities, and using surrogate species as the
measure of success.
Among the remaining workload, we will focus on projects with a high
conservation benefit. Whenever possible, we will place the highest
priority on projects where big conservation gains can be achieved with
relatively little effort through the solid work of our partners. When
conservation value and programmatic priority are equal, projects will
enter a queue to be addressed on a first-come, first-served basis.
Streamlined, programmatic approaches (landscape scale) will be
prioritized ahead of individual projects.
Action agencies and applicants can reduce permit processing time frames
by producing well-prepared biological assessments and habitat
conservation plans. For priority projects we cannot accomplish due to
budget shortfalls, reimbursable dollars may enable us to hire temporary
or term employees to work on the project from start to finish.
Reimbursable dollars should only be accepted when a project would
otherwise be a priority, but would go unfunded due to budget
shortfalls.
Based on limited staff resources, we anticipate that we will not be
able to meet regulatory time frames with some degree of frequency. This
includes ESA section 7 time frames for issuing biological opinions (135
days) and time frames for issuing ESA section 4 findings (e.g., 90-day
findings and 12-month findings). Finally, there are a number of items
we simply won't be able to do. These items are discussed below, by
Ecological Services Program.
Section 7 and Section 10
Our primary focus will continue to be Departmental and agency
priorities, as well as projects where we foresee having the biggest
conservation benefit. Departmental and agency priority projects include
the DRECP, high-profile renewable energy projects, Klamath, BDCP, and
OCAP as well as projects necessary for health and human safety or
national security and those for which we have court-ordered or
settlement obligations. Among section 10 projects, we will prioritize
those regional HCP development efforts for which we think the
applicants are committed to expeditiously completing the plan and which
are most promising in terms of positive conservation outcomes. Our
section 7 priorities will focus on those projects that are designed
with species conservation in mind and projects where we can achieve the
greatest conservation outcome for the resources expended in working on
the project. We will pursue programmatic consultations if there are
expected long-term conservation and workload benefits.
To focus our efforts and attention on priorities, we foresee rarely or
not doing Safe Harbor Agreements, general technical assistance, and
CCAAs and CCAs. We will step away from the lead role on most intra-
Service consultations for non-Ecological Services programs. Those
programs have been delegated the authority to complete their own
section 7 consultations; we are committed to providing those programs
with the tools they need to support their own determinations.
As the economic recovery continues, we anticipate that HCP and
consultation workload associated with urban development will increase.
We must be prepared to prioritize projects. We will not be able to
complete all projects in a timely manner. Sometimes our partners have
assisted with funding, which helps us complete these requests in a more
timely manner (streamlined MOU with FS, agreements with Caltrans and
the Corps). To enable Federal land management agencies to reduce the
risk of catastrophic wildfire, we will continue to engage these
partners on fire-related consultations. We have recently reaffirmed our
commitment to the Streamlined Consultation process in the Northwest
Forest Plan area, and will continue to seek consensus and efficiencies
in these consultations.
Listing and Recovery
Our primary (and perhaps only) focus will be on meeting court-ordered
and settlement deadlines for findings, including findings for
reclassifications. We will also put resources toward completing
litigation-driven recovery plans, and for other recovery plans we will
continue to implement our work activity guidance for FY13-FY17,
ensuring that the pace of plan development is commensurate with
staffing levels. Recovery implementation will be focused on critically
imperiled species and will be primarily in the form of Service staff
working with partners to identify and fund recovery actions.
With few exceptions, we do not plan to carry out the following
activities: uplisting rules, downlisting rules, post-deli sting
monitoring plans, petition responses, CNORs, non-MDL findings and
proposed rules, or recovery plan revisions. Five-year reviews will not
be done, although abbreviated reviews may be completed if sufficient
resources are available.
Contaminants
Our main priority will be maintaining spill response planning and
preparedness capabilities with our field offices as well as our Federal
and State partners. Another priority will be to ensure new case
development and support in our Natural Resource Damage Assessment &
Restoration (NRDAR) program. For restoration activities of our on-going
existing NRDAR cases, implementation and support will continue as these
funds are non-appropriated and derived from settlements.
With the exception of our current On-Refuge Investigation program
activities, all contaminant investigation activities are no longer
being implemented (unless funding/support is provided to us from our
partners or stakeholders). In addition, technical assistance provided
on contaminant issues to other Service Programs (i.e., Consultation,
Recovery, Listing, Refuges, Fisheries, etc.) will be significantly
reduced. Some technical assistance may be provided on a case-by-case
basis for high-priority issues, and in such cases cost-sharing with the
requesting program will be sought. Specific Service issues that will be
affected include:
Clean Water Act regulatory reviews (water quality
standards, TMDLs, etc.)
Listing support reviews (five-factor analyses, 90-day
reviews, deli sting, etc.)
Mining-related NEPA reviews
Pre-acquisition Environmental Site Assessments (Level II
and Level III)
Recovery support reviews (recovery plans, 5-year reviews,
etc.)
Refuge Pesticide Use Proposal reviews
Refuge Cleanup reviews (EECAs, PASIs, etc.)
Conservation Planning Assistance
We will continue to focus our efforts on Departmental and agency
priorities, including the Secretarial Determination for the Klamath
settlement agreement, and water operations associated with the Klamath
hydroelectric facilities and the Central Valley Project Improvement
Act. Our field offices have been and will continue to rely on
reimbursable funding from our Federal partners for work on Fish and
Wildlife Coordination Act reports. It is imperative that these funds be
sufficient to fully support staff, and we will prioritize projects
based on the amount of funds, Departmental and agency priorities, and
conservation benefit. We will continue work on FERC reviews insofar as
the available funding allows, which will likely entail stepping away
from involvement with some FERC projects (except Klamath).
We will not or rarely be reviewing and commenting on other agencies
NEPA documents, unless we have agreed to be a Cooperating or
Participating agency. Our involvement with Bald and Golden Eagle Act
permitting will be minimal, and will largely depend on the priority
given to individual projects.
cc: R8 All ES Project Leaders
______
Mr. LaMalfa. Thank you. Real quick, 14 generations, what
year does that go back to?
Mr. Lopez. 1600, sir.
Mr. LaMalfa. Incredible. OK, thank you. Mr. Mike Lucero?
OK, we are changing the order, I am sorry. We need to go to Mr.
Garrett VeneKlasen. Is that in the ball park, VeneKlasen? Go
ahead and say it your way so we will pronounce it correctly.
Mr. VeneKlasen. It is Garrett VeneKlasen.
Mr. LaMalfa. VeneKlasen, thank you. Alright, 5 minutes,
please.
STATEMENT OF GARRETT O. VENEKLASEN, EXECUTIVE DIRECTOR, NEW
MEXICO WILDLIFE FEDERATION, SANTA FE, NEW MEXICO
Mr. VeneKlasen. Mr. Chairman and members of the committee,
my name is Garrett VeneKlasen. I am a native New Mexican, and I
have spent my entire life hunting and fishing throughout the
Southwest. Before taking my position with the New Mexico
Wildlife Federation, I was the Southwest Director for Trout
Unlimited, working on cold water restoration and public land
protection projects, including Rio Grande del Norte and the
Organ Mountains-Desert Peaks designations throughout New
Mexico, Arizona and Colorado.
Hunting and fishing combined contribute $93 billion to the
Nation's GDP. It is a massive industry. Like all western
states, hunting and fishing in New Mexico is a thriving and
rapidly growing, yet sustainable industry that enhances and
greatly diversifies rural economies west-wide.
Eighty-nine percent of New Mexican sportsmen and women
utilize public lands to hunt and fish. And even though we are a
sparsely populated state, New Mexican sportsmen spend $579
million, support $258 million in salaries and wages and
contribute $58 million to state and local taxes and support
7,695 jobs annually.
It is also important to note that in New Mexico, hunting
and fishing are more than just sport. They are the oldest of
our core cultural land use values with a 10,000-year-old
tradition. This vibrant industry and our cultural values and
lifestyle are dependent upon two things: expansive, viable
habitat for our fish and wildlife and large undeveloped tracts
of public lands in which our rapidly growing community can
recreate.
A tiny spring and its riparian area in the Lincoln National
Forest known as Agua Chiquita has gotten a lot of attention
lately. The Agua Chiquita offers crucial riparian habitat used
by elk, which are native to the area, turkey and other wildlife
for water, food and breeding. The riparian areas have been
fenced with gaps for cattle for more than 20 years to mitigate
livestock damage. Such cattle exclosures have been used by
virtually all state and Federal land management agencies to
protect critical habit for more than 50 years west-wide.
The original barbed-wire fence around Agua Chiquita was cut
so often that the Forest Service replaced it with a welded pipe
rail fence. It is 4 feet high and roughly encompasses 23 acres
of land. It encloses less than 23 acres of riparian habit
within a 28,000-acre grazing allotment.
It was not the Forest Service that paid for the fence.
Hunters and anglers did using $104,000 from New Mexico's
Habitat Stamp Program, which is paid for with hunter and
fishing license dollars, and $11,000 from the New Mexico
members of the National Wild Turkey Federation. It was a
sportsmen-generated project that was designated by the
Southwest Habitat Stamp Program. It was not generated by
extreme environmentalists or anybody else.
Some of those who were offended by the Agua Chiquita
project said water rights were being ignored or taken away, but
the U.S. Forest Service told our organization that when they
checked with the New Mexico agency that monitors water rights,
the Office of the State Engineer, that the database showed that
the only recorded water rights in that portion of Lincoln
National Forest belonged to the U.S. Forest Service.
This issue of habitat protection goes far beyond the
Lincoln National Forest. It extends wherever important wildlife
habitat is threatened in New Mexico and other states. Stream
exclosure projects offer tremendous benefit for game and non-
species alike, both aquatic and terrestrial.
Outdoorsmen like me are primarily interested in trout, elk,
turkey and other game, but what is good for little creatures
like meadow jumping mice are also great for trout, waterfowl,
upland birds and big game, for which New Mexico is known
worldwide.
The discussion in New Mexico, and now in this hearing, is
focused on fencing projects around critical wildlife habitat.
But the discussion should broaden and acknowledge the impact of
livestock grazing on our western landscapes and watersheds.
Hundreds of years of grazing have transformed entire western
landscapes and compromised the function of our water head. This
is a fact, and it is high time that both state and Federal
policymakers and land management agencies recognize this.
Grazing practices affect the fish and wildlife, but the
general public has also felt the impact. Our watersheds have
been degraded and they are dysfunctional. And the downstream
users, municipalities and larger agricultural interests, are
the ones that are really feeling the brunt of this. Our western
watersheds are broken and need to be fixed.
The good news is that our watersheds are restorable and
that sustainable grazing can and should continue alongside
proactive habitat restoration. But as a Nation, we need to
start thinking of better ways to protect and restore degraded
watersheds and riparian habitat while at the same time allowing
our grazing community to thrive. Sportsmen have already shown
they are ready to chip in and do our share.
The Agua Chiquita incident reflects the feeling by some
that Federal agencies, such as the Forest Service and BLM, have
somehow overstepped their authority. They have not. They are
abiding by law laid down through 200-plus years of democratic
action. Sportsmen have had to learn to share our public lands
and to take responsibility for protecting them. We urge others
who use and profit from our Federal public lands to do the
same.
Thank you very much.
[The prepared statement of Mr. VeneKlasen follows:]
Prepared Statement of Garrett O. VeneKlasen, Executive Director, New
Mexico Wildlife Federation
Chairman Rob Bishop, Ranking Member Raul M. Grijalva, members of
the committee: thank you for giving me the opportunity to present my
perspective on ``Threats, Intimidation and Bullying by Federal Land
Managing Agencies,'' especially as it pertains to cattle exclosures on
Federal lands in New Mexico.
My name is Garrett VeneKlasen. I am a native New Mexican and have
spent my entire life hunting and fishing throughout the Southwest.
Before taking my current position as the Executive Director of the New
Mexico Wildlife Federation, I was the Southwest Director for Trout
Unlimited, working on coldwater restoration and public land protection
projects throughout New Mexico, Arizona and Colorado.
Hunting and fishing combined contribute $93 billion to the Nation's
Gross Domestic Product. Like all western states, hunting and fishing in
New Mexico is a thriving and rapidly growing yet sustainable industry
that enhances and greatly diversifies rural economies west wide.
Eighty-nine percent of NM sportsmen and women utilize public lands
to hunt and fish. New Mexico sportsmen alone spend $579 million,
support $258 million in salaries and wages, contribute $58 million to
state and local taxes and support 7,695 jobs annually (Outdoor Industry
Association, Boulder, Colo.)
It is also important to note that in New Mexico, hunting and
fishing are more than just ``sport.'' They are the oldest of our core
cultural land use values with a 10,000-year tradition.
This vibrant industry and our cultural values and lifestyle are
dependent upon two things: expansive, viable habitat for our fish and
wildlife and large, undeveloped tracts of public lands in which our
rapidly growing community can recreate.
The tiny spring and its riparian area in Lincoln National Forest
known as Agua Chiquita have gotten a lot of attention lately. A small
group of ranchers claims the U.S. Forest Service is trampling their
rights. They make it sound like they're the victims, but there's far
more to the story.
The Agua Chiquita offers crucial riparian habitat used by elk,
turkey and other wildlife for water, food and breeding. The riparian
area has been fenced--with gaps for cattle--for more than 20 years to
mitigate livestock damage. Such cattle exclosures have been used by
virtually all state and Federal land management agencies to protect
critical habitat for more than 50 years.
The original barbed-wire fence around the Agua Chiquita was cut so
often that the Forest Service replaced it with a welded pipe-rail
fence, 4 feet high and roughly a mile long on both sides of the stream.
It encloses less than two dozen acres of riparian habitat within the
28,000-acre grazing allotment. Cattle have access to the stream through
two ``water lanes'' built into the fence.
But it wasn't the Forest Service that paid for the fence. Hunters
and anglers did, using $104,000 from New Mexico's Habitat Stamp Program
and another $11,000 from New Mexico members of the National Wild Turkey
Federation. It was sportsmen in southeast New Mexico that manifested
the Agua Chiquita project and made it a top priority because riparian
habitat is a precious thing in our arid state.
Some of those who were offended by the Agua Chiquita project said
water rights were being ignored or taken away. But the U.S. Forest
Service told our organization that when they checked with the New
Mexico agency that monitors water rights, the Office of the State
Engineer, the database showed that the only recorded water rights in
that portion of Lincoln National Forest belonged to the U.S. Forest
Service.
There were also complaints that the cattle in that grazing
allotment were being denied water. But in fact, there are two places
along the Agua Chiquita project where cattle can reach the stream. The
Forest Service has excellent photographs if you would like to see them
for yourselves.
But this issue of habitat protection goes far beyond Lincoln
National Forest, however. It extends wherever important wildlife
habitat is threatened, in New Mexico and other western states.
Stream exclosure projects offer tremendous benefits for game and
non-game species alike, both aquatic and terrestrial. Outdoorsmen like
me are primarily interested in trout, elk, turkey and other game. But
what's good for tiny creatures like the meadow jumping mouse is also
great for the trout, waterfowl, upland birds and big game for which New
Mexico is known worldwide.
The discussion in New Mexico and now, in this hearing, has focused
on fencing projects around critical wildlife habitat. But perhaps the
discussion should broaden and acknowledge the impact of outdated
livestock grazing practices on our western landscapes and watersheds.
Hundreds of years of overgrazing has literally transformed entire
western landscapes and greatly compromised the function of our
watersheds. This is a fact and it's high time both state and Federal
policymakers and land management agencies recognize and address this
issue head on.
Grazing practices have affected fish and wildlife, but the general
public has also felt the impact in many western states. Degraded
watersheds--especially upland watersheds--do not properly hold and
dependably deliver our precious and limited water reserves. In the end,
the biggest losers are municipalities and downstream agricultural
interests who can and should be receiving more water if the upstream
systems functioned as they should. The economic impacts to these water
dependent economies--especially in times of extreme drought as we're
seeing in much of the West--should be carefully considered by this
committee.
The good news is that our watersheds are restorable, and that
sustainable grazing can and should continue alongside proactive habitat
restoration. But as a Nation we need to start thinking of better ways
to protect and restore degraded watersheds and riparian habitat while
at the same time allowing our grazing community to thrive. Sportsmen
have already shown they are ready to chip in and do our share.
It is ironic that the title of this hearing is ``Threats,
Intimidation and Bullying BY Federal Land Managing Agencies.'' I would
ask this committee to also consider ``Threats, Intimidation and
Bullying OF Federal Land Managing Agencies,'' by certain members of the
public lands grazing community as well as by select county
policymakers. More than once I have witnessed county commissioners
publicly verbally abuse and ridicule land managers in their meetings.
I believe the tension under discussion today boils down to one
thing: communication. I suspect that if Federal land managers were
treated with more respect, the public lands grazing community, county
officials and the land managers could start working out their issues on
a local, mutually respectful level.
The Otero County Commission's actions and behavior certainly has
not represented the best interest of their sportsmen constituents, but
instead follows a flawed ideological agenda of rejecting America's
public lands legacy. It is also contrary to the best of human traits--
collaboration and cooperation.
Public lands are democracy in action. They are worth fighting for.
They are an American birthright that belongs equally to all citizens
both born and unborn. Proximity bestows neither privilege nor special
entitlements, only a heightened responsibility of localized
stewardship.
But as misguided incidents like the Agua Chiquita in New Mexico,
the Cliven Bundy standoff in Nevada and the ATV trespass fiasco in
Utah's Recapture Canyon show, there is a move afoot to ignore these
fundamental public property rights. To some, it may not matter. To
public lands sportsmen and women, it does.
The Agua Chiquita incident reflects the feeling by some that
Federal agencies such as the Forest Service and the BLM have somehow
``overstepped'' their authority. They haven't. They are abiding by the
law laid down through 200-plus years of democratic action. Sportsmen
have had to learn to share our public lands and to take responsibility
for protecting them. We urge others who use and profit from our Federal
public lands to do the same.
Attachment
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Mr. LaMalfa. Thank you.
OK, Mr. Mike Lucero, you are the closer here, so 5 minutes.
STATEMENT OF MIKE LUCERO, RANCHER, JEMEZ PUEBLE, NEW MEXICO
Mr. Lucero. Mr. Chairman, members of the committee, I
appreciate your time. First off, my name is Mike Lucero. I was
born and raised in New Mexico as well as my family. My family,
friends and I ranch in northern New Mexico, as do many.
I am here today to inform you on some of the issues that we
are having with our Federal agencies, the Forest Service and
the Fish and Wildlife Service.
We feel that when it comes to these agencies, they take the
``take it or leave it'' stance with us, as they have now for
many years due to the budget issues, low staffing and lack of
training, to name a few. But the most recent one that I will
not stand for is, ``This is to avoid a lawsuit, that is why
this is happening to you.'' By saying that, I feel that they
are telling us, ``This is the land of opportunity until
somebody does not like what you are doing.''
We have always wanted to work well with the Forest Service,
and I think that our records will show that. And even now, we
are respectfully disagreeing with what is going on though we
are growing tired of trying to get answers and talk about
compromise and being shut down because of the threat of lawsuit
by a non-governmental agency.
Remember, our tax dollars are being spent to keep out
cattle that have been grazing--that occurs only 45 days a year
in these areas. And to my knowledge, are not the only grazing
animals that use this area. And by doing so, we feel that our
rights are being violated. Cattle have been grazed on this land
for generations. Forgive me, my emotions, because this is dear
to me, OK, for generations, long before the Forest Service took
over.
The Fish and Wildlife talk about ecosystems. How long does
something have to be in place for it to become part of the
ecosystem? Is 100 years not part of that? And how does it
change the ecosystem by changing what is going on now and what
has been for over 100 years?
Somehow I feel that they have not done their studies and
found an effective way to spend this money that has somehow
been set aside for New Mexico jumping mouse habitat.
Now, we have been asking for compromise. We have been
wanting to work out alternatives to what is going on up there.
The ranchers there are tired of asking questions and never
getting answers. Every time we have a question, there is always
a thread of ``if you question what is going on, you are going
to lose your permits.''
The majority of these men that are ranching in these areas
are elderly. This is their sole source of income. And these
agencies need to realize that when this--when people come to
this table, and they sit across from the Forest Service or the
Fish and Wildlife and they ask and answer, they expect the
respect that we give them when we do our daily job up there and
manage the way we have been for 100 years. The problem is we do
not get answers ever. And if we question more than we are
supposed to, we are always threatened.
Now, I sit before you today to let you know what is going
on up there. And I hope that we can come to some kind of
agreement on what needs to be done and move forward with it
because enough is enough when it comes to bullying people that
have been on this land for generations. Remember, this was a
land grant before the Forest Service took it over. And my
family ultimately has been the stewards of this land for as
long as they have. And the reason we are in the situation we
are now with poor watershed and wildfires is mismanagement by
the people that are taking care of it now, the Federal
agencies.
Thank you.
[The prepared statement of Mr. Lucero follows:]
Prepared Statement of Michael Lucero, Jemez Pueble, New Mexico
Mr. Chairman and members of the committee, thank you for allowing
me to tell you what is going on in New Mexico at the hands of the U.S.
Forest Service and the U.S. Fish & Wildlife Service.
My name is Michael Lucero, I was born and raised in New Mexico. I
am an allotment owner in the Santa Fe National Forest, as is my father.
I currently serve on two boards; the Jemez Valley School Board of
Education and the Union Board at work.
My family and I ranch on the Santa Fe National Forest, and have for
many generations. My great grandfather started off on foot with 1,000
head of sheep when the Forest Service was not even in existence. This
was then passed down to my grandparents, then to my father.
Our allotment originally started as the San Diego Land Grant which
eventually was taken by the government and became Forest Service land.
Land grants were issued to settlers by the king of Spain when the land
was part of Mexico. The land was taken from us to create the
bureaucracy in place today. Now that government is driving us
completely from the land.
We feel that the government has taken away and are still trying to
take away what is rightfully ours, from our grazing rights to our water
rights. It seems that every year it gets more difficult to continue
with our way of life and keep our heritage alive as the government is
continually putting obstacles in our path.
My mother's family was driven out of the logging business when the
Spotted Owl became an endangered species. They left the valley that
they grew up in to find work elsewhere.
Since the drought took over New Mexico, the Forest Service has used
the ``drought'' to reduce our herd numbers. We always did as we were
asked and cut our herds. Even though we cut our numbers for a
particular year, we still paid the full payment due for the permit.
When we looked at the drought maps and the formula they were using with
the Forest Service, we were able to prove to them that their formula
was incorrect. We were then allowed to come in with full numbers for
our herds. Now that that issue has been resolved, here we are again
with another issue, an endangered species threatening to shut us down.
Two years ago in 2011, our range conservationist gave us a handout
which talked about the New Mexico Meadow Jumping Mouse. In that meeting
he stated that if it was listed, that it would be the end of grazing on
Forest Service Lands.
This mouse hibernates about 9 months a year and requires a 24-inch
stubble height of dense grass. If we were not already providing the
appropriate conditions, how can the mouse be there?
Another puzzling fact is that the mouse can apparently detect
property lines. The proposed critical habitat goes right to the fence
line to the Valles Caldera National Preserve and stops.
That was all we heard on the issue until the fall of 2013. The
comment period in the Federal Register would open and the Forest
Service told us how important it was to comment. That being said we did
make comments when the notice was posted in the Federal Register. We
then were called into another meeting with the Forest Service where
they told us that they had no control over what was going happen if it
was listed.
The local ranchers had many questions about the New Mexico Meadow
Jumping Mouse, like where it was found. How many were found? What would
be done to protect it and where it would be done? The Forest Service
had no answers about the mouse. They told us that the Fish & Wildlife
Service made all those decisions.
We then asked the Forest Service to call a meeting with the Forest
Service and the Fish & Wildlife Service. In that meeting the Fish &
Wildlife Service told us that the listing of the mouse would not affect
grazing and that the Fish & Wildlife Service had not told the Forest
Service to put up fences of any kind; we were told that all the Fish &
Wildlife Service does is list the species.
The Forest Service was present at this meeting. Eric Hines from the
Fish & Wildlife Service told us that we would still have our
opportunity to be involved in a Section 7 consultation. We asked the
Forest Service about that and they had no clue what we were talking
about. All this being said we have been in the dark since day one.
The science used to list the mouse is disputable. Why are there no
lists of areas that were studied? And if there is a list, why was it
not provided to us when we asked for it? In the meeting with the Forest
Service, they stated that the only reason for the fence was to avoid
being sued by the WildEarth Guardians.
Why is the Forest Service making these decisions that will affect
the local economy, the ranching industry and the culture, and well
being of rural communities? It appears that they are not taking into
account the local comments on these issues based on a lawsuit by a non-
governmental party.
Since when is America not a democratic country? Why is the Federal
Government not giving every citizen its due process on issues that
affect so many different aspects of their lives? In every meeting with
the Forest Service, they are always telling us that we are closer to NO
RANCHING ON FOREST SERVICE LANDS! When we asked how we can work out a
compromise with the Forest Service on issues like this, the Forest
Service personnel always answer, ``It's not me, I was told that this is
the way the upper staff wants it.''
I personally asked about alternatives fencing us off water and then
out of our pastures but always hit road blocks, such as, no money or
more studies needed. But somehow there is now money to build fences? At
about $20 per linear foot, where did the money come from and why now,
when we have been asking for alternatives for the past year. The
expense of putting up this fence does not make sense since we only
graze our cattle 2 months out of the year in these areas.
We were told in the meeting with the Forest Service and Fish &
Wildlife Service that nothing would be done without first the NEPA
process and a meeting with all of the ranchers and the Forest Service
to come up with a plan together. Next thing we hear is that they are
going to put up an 8-foot fence spanning 117 acres to keep animals and
humans out of the critical habitat for the mouse. That is just my
allotment. There are 10 others who are being similarly affected. Seems
that we skipped a couple of steps and their words are just empty
promises. Moving forward like this is a clear picture of GOVERNMENT
BULLYING. They tell us one thing and do the opposite. They are never
truthful with us and we are living in constant fear of what comes next.
After the media got involved around the 4th of July camping season,
the Forest Service changed their tune. They are now proposing a 5-foot
fence covering the same area that may impact dispersed camping. Why are
we told about an 8-foot fence and 2 weeks later it becomes a 5-foot
fence? Why are humans and wildlife, particularly elk, not harmful to
the mouse?
The money being used to erect these fences is from taxpayers. That
being said, it appears that the Forest Service is using my tax dollars
to fence my family and numerous other families OUT OF BUSINESS! Tell me
how that makes sense? Why would our concerns and comments not be heard,
when we have been using these lands since it was our ancestors Land
Grant?
Every time that there are compromises to be made, it is always us,
the ranchers, who have to compromise on our end. We are told that if we
do not compromise and agree with the decisions being made by the Forest
Service that we risk losing our grazing allotments.
How are we supposed to work with the Forest Service when we all
know that they do not listen to our concerns? We want to work with the
Forest Service for the benefit of us all. It is in our best interest to
take care of the land and help manage it properly. If we were not
managing properly, then how is it that my family has been in business
for over 100 years? It's because we love the land and our tradition and
hope to pass it down for many generations to come.
I feel that Agriculture is very important to America, if you've
seen the price of beef in the grocery stores lately, the more they cut
herds the higher the price goes up for all American People.
I don't get how the environmental groups work with the Federal
Government; what gives them so much power that they dictate what the
Federal Government does with other people that use government lands? If
you look at the WildEarth Guardians Web site, it states exactly what
the U.S. Forest Service is going to do.
They want to protect one endangered spices and do everything in
their power to get it done, they don't take into consideration that
land management is so important for example: the Spotted Owl that was
listed years ago. Many people (most of my family) from the logging
industry lost their jobs which cased them to move out of the area to
find work.
Through the years, now from the lack of managing the land correctly
the Santa Fe National Forest is overgrown and we have had several
forest fires with so much fuel they are out of control and the American
Tax Payers spend so much more money on these forest fires than they
would have if the land was managed properly. People would still have
jobs. The Spotted Owl would not have a burned forest and not only that
species, but all the other listed species on the Endangered Species
List. In the ecosystem how do you protect one species and throw it off
for the other endangered species?
Fencing off the river would dramatically affect our culture,
economy, and our local community. Our local community businesses thrive
on the business generated by ranchers, campers, fishermen, hunters and
hikers. If we fence off all of the proposed rivers, it would have a
detrimental effect on these local businesses.
I don't understand how people from other states get jobs at these
Federal agencies that don't understand the way you manage a ranch in
New Mexico. The way we manage a ranch in northern New Mexico is
completely different than you would manage a ranch in a place like
Wyoming or Montana.
The ranchers in this area don't have a lot of money; there are not
a lot of big cattle operations like everyone thinks there are. I bought
my own cattle and allotments and I bought it for a reason. It was an
investment to put my two kids through college and so I could have
something to hand over to my children that they have known their whole
lives. My father inherited his small operation from my grandpa, which
helps pay for my elderly grandmother's care: medical insurance, daily
caretaker, and anything she may need. Because of these cows, grandma is
not in a state paid or Federal paid nursing home. This is how we take
care of her, it's how our community works; this is a part of what we do
as a ranching family and community.
It saddens me to sit in a meeting where the head Forest Ranger
(Linda Riddle) is telling us ``I could care less if they got rid of all
the cows on the Forest, that would make my job that much easier.''
This statement coming from a Federal Government employee! Robert
Trujillo, Deputy Director of the USFS stated in a local newspaper that
he feels that the forest is overgrazed, however if the USFS was to pull
the allotment management records, it would show that this is and never
has been the case. The areas used by the ranchers are NOT OVERGRAZED!
We have never been in violation of the Federal regulations governing
ranching.
The opposite is true for the Forest Service personnel because they
are not following the Federal regulation that says they are to protect
the heritage and culture of ranching families that are allotment owners
on the USFS. The Federal regulation states that they are to always get
input from the allotment owners when making decisions that would affect
them.
Rumors are floating in our communities that the Forest Service is
planning to use eminent domain to obtain private land that is within
what is believed to be jumping mouse areas. We cannot document them,
but this is the fear we are living under.
The government and environmental groups are making it almost
impossible for us to do what we love (our culture/heritage). In my
opinion cattlemen are the caretakers of the land, if it wasn't for
cattle grazing these lands we wouldn't have an environment for a
jumping mouse or most other creatures. We are the ones who manage the
lands and wildlife also benefit from our watering systems.
The media has accurately shown how our land looks. This is how we
have taken care of this land, a part of our culture is an understanding
that you have to take care of the land, in order for the land to take
care you.
We are trying to do the right thing, but what we see for doing the
right thing is we better go along with this or you are going to lose
your permits! Ultimately the government is losing its caretaker,
because that's what we do.
Thank you for your time. We pray that you can help us.
Timeline on New Mexico Meadow Jumping Mouse
February 27, 2014--Official meeting about the NMNJM, the
Forest Service told us they were going to start the NEPA
process
March 4, 2014--The Forest Service told us NO NEPA; Forest
Service talked about the fence and taking 300 feet on each
side of the river
March 28, 2014--Forest Service sent letter on mouse
fencing
April 2, 2014--We called a meeting with the Forest Service
to ask questions
April 8, 2014--Meeting with the Forest Service; we looked
at other options, but no money
April 9, 2014--Meeting in El Rito NM with Cal Joyner; NO
ANSWERS
April 25, 2014--Meeting with the Forest Service and Fish
and Wildlife Service
May 9, 2014--Forest Service sends letter retracting the
March 28, 2014 letter
June 25, 2014--Meeting with the Forest Service; they
showed us a map of fencing areas and they told us about
categorical exclusion
July 2, 2014--Forest Service and Fish & Wildlife canceled
meeting
July 10, 2014--Received comment notices from Forest
Service
______
Mr. LaMalfa. I want to thank you, Mr. Lucero. OK, we are
still doing OK on time. Let's move to our first round of
questions here. I will recognize myself for up to 5 minutes
here.
Let me come back to you, Mr. Lucero. In your dealings, you
felt that decisions are made by Federal managers not because
maybe it is the best practice or the most neighborly one but a
fear of lawsuits by other outside sources. Could you dwell on
that a little bit, please?
Mr. Lucero. Exactly. We have asked--we have asked them, OK,
``What is the alternative to putting a fence up that excludes
cattle out of these riparian areas?'' And they said, ``If we do
not put this up, we are going to be sued.''
Mr. LaMalfa. By who?
Mr. Lucero. By the WildEarth Guardians. And with their
permission, I videotaped the meeting because I knew this was
going in this direction. And for years, it has been. And I am
fed up with it. So if anybody wants to question what was said
by them, I have it on videotape.
Mr. LaMalfa. You should put that on YouTube then.
Mr. Lucero. Yeah, I guess.
Mr. LaMalfa. It would be easily accessible.
Mr. Lucero. But, yes, their answer is, ``The reason we are
doing this is because we are going to be sued.'' As a Federal
agency, that is not how you manage what is going on in this
forest.
Mr. LaMalfa. It is all too prevalent over a lot of the West
where decisions are made by various entities, and I have run
across it too.
In my part of the state, there is becoming a larger and
larger elk problem in northern California where people are
looking for remedies, and they are not getting them. They are
told, ``Hey, put up a fence, keep the elk out.'' Well, an elk
is a very powerful animal. And so putting aside the idea of the
expense of the fence or you having to change your operation for
something that perhaps should be managed, how effective do you
see fencing as far as just affecting an elk population and
preventing elk grazing, for example?
Mr. Lucero. The fence they originally proposed was 8-feet
high, and it would exclude elk, cattle, hunting, fishing,
hiking, everything. The Fourth of July weekend went by, and for
some reason they came back to us with a letter. And I provided
the letter to you guys. They came back to us with a letter, and
now they are proposing a 5-foot high fence that would just
exclude cattle. Now, tell me that makes sense when we are
talking about 45 days worth of cattle grazing versus 365 days
of elk grazing.
Mr. LaMalfa. So the fences are not preventing over-grazing,
it sounds like?
Mr. Lucero. No. And to go back to the over-grazing, the
term has been thrown around loosely. And I provided some
pictures here. And if I could point to these pictures real
quick, I would like to. This is in a drought. This is the
actual meadow that we are talking about. This is in a drought
before the rain started, and we have already grazed that
pasture. And this is over-grazing to them.
Mr. LaMalfa. This is post-grazing?
Mr. Lucero. Yes. Also, I would like to add the fact that if
we have over-grazed it, why have they never told us we have?
Mr. LaMalfa. OK, thank you. I go to Mr. Dunn. What
recommendations do you have to allow individuals to seek
recourse for the abuses by some of these employees? Have you--
--
Mr. Dunn. Mr. Chair, yes, I have. There is some proposed
language that was part of my written testimony. One alternative
is to make that an addition to the Civil Rights Act and
essentially create a cause of action similar to a Section 1983
civil rights claim. As you are probably aware, Section 1983
claims can be brought against state and local authorities that
exceed the law and harm somebody's individual rights. But that
is not a remedy that is available to private citizens against
Federal employees.
One way to gain some accountability would be to make that
kind of a cause to action available. And I honestly believe
that it would act as a deterrent. I think if there was some
accountability, and the Forest Service, the BLM had to think
about the fact that their actions might cause liability, they
might take a little bit more care in not abusing the law.
Mr. LaMalfa. OK, thank you. I am going to come back on the
second round. I will yield now and recognize Mr. Grijalva, our
Ranking Member.
Mr. Grijalva. Yes, thank you very much. Mr. Lucero, I want
to thank you for your testimony. What are the disadvantages of
not having the agencies that we are talking about here today is
they cannot respond to some of the points that you make. And I
think they need to be responded to. It is my understanding that
nothing has been finalized because we asked about that, in
particular up in northern New Mexico. I asked your Congressman
about that, and the Forest Service said nothing had been
finalized. Leaving that aside, but it would have been good to
get a direct answer,----
Mr. Lucero. Can I speak on that real quick?
Mr. Grijalva. Let me finish my question, Mr. Lucero, and
then you can----
Mr. Lucero. OK.
Mr. Grijalva [continuing]. Wrap it up. Breaks in the fence
that would allow cattle to be able to go into those 23 acres,
is it?
Mr. Lucero. This is a completely different area----
Mr. Grijalva. OK.
Mr. Lucero [continuing]. That you are talking about.
Mr. Grijalva. That is the other one?
Mr. Lucero. Yes.
Mr. Grijalva. Breaks in there so they could go--cattle
could have access, the pumping of water even if it is
necessary, those were two points that I think I had also heard
in a letter that I received from one of your colleagues, one of
the ranchers up there. And those are questions we are going to
pursue with the Forest Service because there is no way to get
an answer right now. You have your point of view and your
opinion and what you taped. And I do not deny that, but I want
to hear from the agency as to how they are working with and
what mitigating steps they are making to try to draw something
cooperative with the ranchers in the area because I think that
is the important way to go.
I know you will be advised that litigation is the only way
to fly, but if this can be worked out cooperatively, I think it
would be to the best benefits of everybody.
So we will pursue with the agency the points that you
brought up because I think they deserve answers. And I
certainly want those answers as much as you do.
Mr. Lucero. OK. I think I kind of gave you what you are
asking for. Categorical exclusion is what they told us they are
using on this, which does not give us our option for a NEPA or
an environmental assessment. We have asked for that in an
official letter.
Mr. Grijalva. Well, see, that is the point. The agency
being here, I would have asked those questions of the agencies.
Mr. Lucero. Yes, well, I provided you the paperwork so you
have it in front of you.
Mr. Grijalva. Well, I would still need to the talk to the
agency, Mr. Lucero,----
Mr. Lucero. Yes, sir.
Mr. Grijalva [continuing]. And get that point of view.
Thank you. I was going to ask Mr. Dunn, the argument that I
have heard you make is that the Federal grazing permits are, if
I am not mistaken, a form of private property or should be
recognized by the Federal Government?
Mr. Dunn. Ranking Member, I was actually discussing water
rights. I had not talked about whether or not grazing rights
were private property.
Mr. Grijalva. Is it in the written testimony? Well, I
thought it was in your written testimony as well as we read it.
Is it?
Mr. Dunn. I believe all I discussed at this point was
private water rights.
Mr. Grijalva. But is it in your written testimony or is it
not?
Mr. Dunn. I do not believe it is, sir.
Mr. Grijalva. Well, then that question is moot then if it
is not in there, but if it is, we will get back to that
question, OK? Because I think I am not the constitutional
scholar that you appear to be, but I do have a constitutional
question.
Mr. Dunn. OK.
Mr. Grijalva. The other point is, Mr. VeneKlasen, in the
first panel, we heard about transferring all the Federal public
lands to the states. We also heard a little bit about let the
local communities be the decisionmakers and the state just pays
the--and the Federal Government just pays the bills. But all
the policy decisions are going to be made by the state. What
does that mean for the sportsmen you represent?
Mr. VeneKlasen. Well, I mean it sounds good on paper but it
is sort of a gilded----
Mr. Grijalva. Lily?
Mr. VeneKlasen. It is gilded. One of our biggest concerns
is we have had some catastrophic wildfires in New Mexico, the
cost of which are in excess of $150 million. There is no way on
earth the state could even begin to pay for fighting a
catastrophic wildfire, for example.
We have a 100,000-acre thinning project in the Jemez
Mountains right now. The Federal Government has donated $80
million to thin that 100,000 acres of forest.
And so the idea of state management sounds good on paper,
but what we would also see is in our state, for example, you
cannot camp on state land. And the lands are regulated in a
very different way. So, you know, the idea of the state
managing lands is a--it is a pipe dream is what it is.
Mr. Grijalva. And the states charge a much higher grazing
fee than the Federal Government and for other uses?
Mr. VeneKlasen. The average AMU in New Mexico on private
land is $13, and the Federal lands, it is a $1.34. And so, you
know, those are big things that would impact the grazing
community.
Mr. Grijalva. But state land does not have the
constitutional issues that have been raised today as to----
Mr. VeneKlasen. No. And one of the other concerns we have
is the thing we like about Federal management is there is a
standard that is followed across the board that will make sure
that these lands and the habitat are----
Mr. Grijalva. And I agree. I think the point that Mr.
Lucero brought up about northern New Mexico that I am not real
familiar with, but I got real lucky and married a young lady
from Penasco, so I know--I got very lucky, is there is unique
historical, there is unique cultural issues that while there is
a general standard, sometimes those nuances have to be part of
the decisionmaking. I think that in particular in northern New
Mexico, that might be the case. In some of the other areas, I
do not think they have that nuance.
Anyway, I yield back.
Mr. LaMalfa. Alright, thank you. Mr. Tipton, 5 minutes,
please.
Mr. Tipton. Thank you, Mr. Chairman. And, by the way, Mr.
Lopez, that looks like a great field to graze in from the one
you have got up there, a lot of feed.
But I would like to start with Mr. Lopez. We have a real
issue it seems. The Federal Government keeps trying to acquire
more land. And I found it incredibly curious when we have had
the Forest Service before us, even the BLM, they do not have
the resources to currently manage the lands they have, but are
now acquiring more land. Now, they have been acquiring land
near your homestead, is that correct?
Mr. Lopez. Mr. Chairman and Mr. Tipton, that is correct. In
my written testimony, I provided you with a map that was
attached there. And basically the BLM has been purchasing small
tracts of lands that were parts of old ranches that were around
me until the point that I am considered an in-holding.
Mr. Tipton. Yes.
Mr. Lopez. Which they gleefully tell me that I am an in-
holding. And to me that means that I am going to be the next
willing seller because I am completely surrounded by Federal
land now.
Mr. Tipton. Now, what type of notice did you receive, Mr.
Lopez, in regards to the acquisition of that land? Did the BLM
notify you that they were making those acquisitions?
Mr. Lopez. Mr. Chairman and Mr. Tipton, they did not notify
me. It is my understanding in talking to them recently that
normally they do not notify the adjoining landowners because
when they make agreements with certain nonprofits, like Trust
for Public Land and others, it is usually a hush-hush deal.
They do not want anybody to know what they are doing. And so
when I found out about all these things was after the fact.
Mr. Tipton. But the fact of the matter is that may have
been an economic decision on the BLM's part to be able to get
the land at a lower price. But how has that impacted your land
price now that you are now labeled as an in-holding?
Mr. Lopez. Well, apart from being an in-holding, Mr.
Chairman and Mr. Tipton, I also happen to be in what the BLM
created a few years ago called an Area of Critical
Environmental Concern. The BLM tells me that I am not in that
area, although I am surrounded by the area. But since I am not
Federal land, it does not impact me. The problem is that it
actually does impact me because if I went to use any of my
mineral rights or anything else or do any development on my
property being inside that zone, I would have a very difficult
time getting anything through the county because they recognize
the Area of Critical Environmental Concern.
Mr. Tipton. So effectively this had a negative impact in
terms of your holdings, ability to be able to re-sell the
property. Do you not believe that adjacent landowners at a very
minimum should at least be notified of these acquisitions
because of the potential challenges that you are describing?
Mr. Lopez. Mr. Chairman and Mr. Tipton, I certainly do. And
it would have been nice if they had advised me because now that
they have purchased all this land, I have a lot of trespass
issues on the property because my property is in between two
pieces of BLM land. And so I get trespassed all the time. If I
had known about this before this happened, we could have come
to some agreement in doing a land exchange or something like
that that would have benefited both of us.
Mr. Tipton. You know, I just introduced some legislation,
it was H.R. 5074, the Land Adjacency Notification Disclosure
Act, which would actually require that you be notified. Would
that be of benefit to you?
Mr. Lopez. Mr. Chairman and Mr. Tipton, that certainly
would be of benefit, maybe not in my case now but for many
others, it certainly would be.
Mr. Tipton. I thank you for your time and for being here
and certainly understand some of the challenges that you are
facing.
Mr. Dunn, I would like to be able to visit with you for
just a moment if we may in regards to the company that you
represent. In their vested private property easement across
these Forest Service lands that they have had for 100 years,
were they notified that it no longer existed and is now subject
to a lengthy NEPA analysis?
Mr. Dunn. Yes, they have been.
Mr. Tipton. OK. And was the company ever consulted or
afforded any opportunity to be able to respond to the Forest
Service in regards to these actions?
Mr. Dunn. They did. They had discussions with the Forest
Service. They were in negotiations with the Forest Service.
Ultimately, what the Forest Service said was, we will issue you
a special use permit for that road you have already--well, that
they believe that they already hold a vested right to, but we
do not recognize, the Forest Service does not recognize vested
private property right easements across our ground. So
therefore without a special use permit, you have nothing.
Mr. Tipton. Even with that ability to be able to have that
easement, is this effectively a taking?
Mr. Dunn. Yes, it is. One of the things I did disclose is
that that is what the company is considering is--and has filed
a takings litigation on that basis.
Mr. Tipton. Right, and no compensation was offered. The
Federal Government took it?
Mr. Dunn. No, they just wanted them to give up their
easement.
Mr. Tipton. This puts the company in kind of a difficult
position of take it or leave it really, doesn't it, with the
Federal Government?
Mr. Dunn. Absolutely. The ``take it or leave it'' attitude,
not only are they potentially losing their right, but they are
trying to start a company and reopen a mine, bring people to
work, startup, get community--get the community involved, get
going. And without that certainty that that road is going to
continue to be there, and that they will continue to be able to
access that, you are talking about a publicly-traded company
that might lose millions of dollars when they get shut down by
the Forest Service over a \3/4\-mile section of road.
Mr. Tipton. Thank you. I am out of time, Mr. Chairman. I
yield back.
Mr. LaMalfa. Thank you, Mr. Tipton. Votes are up. We have a
little time I think for one additional round. Would you like an
additional round, Mr. Tipton? OK, alright. Thank you.
I would follow up with one for Mr. VeneKlasen. I was
curious, again, you had in your statement that fencing off the
particular creek was done in order to protect a trout habitat.
According to the Watershed Protection Section of the New Mexico
Environmental Department, the only trout present in that stream
at that time were brook trout, which are native to the East
Coast, and rainbow trout, native to the Northwest. So what is
the logic in cutting off access to protect non-native fish as
well as non-native elk and even feral pigs that are non-native
to that area? It seems that that is an overreach.
Mr. VeneKlasen. Mr. Chairman, regardless of the species of
trout that exists in the particular watershed, and I think we
are talking about the Sequoia River because Agua Chiquita does
not have trout in it. The trout do have a great deal of
economic value because people come and fish for those fish, not
only people that live in the area but a lot of out-of-state
people come and fish there.
Mr. LaMalfa. But you are using basically environmental law
to cut people off with longstanding generational access to that
for someone else's economic benefit. It almost sounds like an
imminent domain taking in a way.
Mr. VeneKlasen. I don't think you are taking away--if we
are talking about the Sequoia instance, we are talking about
101,000-acre grazing allotment.
Mr. LaMalfa. I was talking about the Agua Chiquita.
Mr. VeneKlasen. Agua Chiquita does not have trout in it.
Mr. Dunn. Mr. Chairman?
Mr. LaMalfa. Yes, sir.
Mr. Dunn. I might be able to add to that. Part of why the
Agua Chiquita fencing originally started back in the mid-1990s
was because there was a hatchery in that area at that point.
That hatchery has long since gone away in the last 10 years. It
is no longer there. So the reason that Sikes money was used,
and I believe a lot of the--we will call it the environmental
money was used on those projects was originally because there
was a fish hatchery in that area. Since that time, it has gone
away. And now they have without going through the NEPA process
converted this to mouse habitat. And this riparian area is now
about mouse habitat even though they have never actually gone
through the NEPA process to study the effects of making it
mouse habitat.
Mr. LaMalfa. Good. OK, thank you for the clarification. We
have run across this again where we have non-native species
that all of a sudden become protected species where they are
introduced by other means, mankind, et cetera.
Mr. Lucero, you look like you would like to add to that?
Mr. Lucero. Yes, I would like to add the fact that Mr.--I'm
sorry?
Mr. VeneKlasen. VeneKlasen.
Mr. Lucero. VeneKlasen stated that it is only 127 acres out
of this allotment. I get that. I have a 2,800-square foot
house. My kitchen sink where I drink my water is very small but
without that, how am I supposed to use my home?
Mr. LaMalfa. Because that is the water source?
Mr. Lucero. Yes, sir.
Mr. LaMalfa. Yes, sir. OK. Alright, one final one. Mr.
Dunn, I was intrigued by something you were talking about
earlier as a type of a civil rights action for people in
dealing with their Federal Government there, especially western
landowners and those that regulate them. Would you expand upon
that a little bit?
Mr. Dunn. Mr. Chairman, I believe an expansion of that
would be that while a cause of action already exists against
state employees that would harm your property rights, what we
are talking about is expanding that to Federal employees that
would use the color of authority to infringe upon a person's
constitutional and civil rights, namely, to interfere with
their constitutionally guaranteed property rights.
For instance, the mining company that I described in my
written testimony, where the Forest Service came in and
threatened and cajoled them to give up their vested property
rights easement and used the color of law to do so, if this
language were adopted, it would enable that company to bring a
Section 1983 claim in effect against the Forest Service where
they have used their authority improperly.
Mr. LaMalfa. Interesting. I am interested in that concept.
So at this point, there are no other further questions from
the committee. I would like to thank all of you for your
travel, for your patience as we come back and forth from votes,
and we have them up right now. So much appreciated that you
would take your time and come speak with us and inform us here.
So for those members of the subcommittee that may have
additional questions in reviewing this or their staff, we would
ask to submit those questions. And then we could ask you to
respond to those in writing at a later date.
The hearing record will be open for 10 days to receive
those responses. So if there is no further business, as we are
lonely here now, without objection, the subcommittee will stand
adjourned.
[Whereupon, at 5:15 p.m., the subcommittee was adjourned.]
[ADDITIONAL MATERIALS SUBMITTED FOR THE RECORD]
Prepared Statement of Drew O. Parkin, Escalante, Utah, regarding a
November 2009 incident at the Circler Cliffs, Garfield County, within
the Grand Staircase-Escalante National Monument
My name is Drew O. Parkin. I am a resident of Escalante, Utah. I am
a natural resource policy analyst and planner with 40 years of
professional experience in 30 states spanning from Maine to Hawaii. In
2009, I was Assistant Manager for the BLM's Grand Staircase-Escalante
National Monument and field station manager for the northern portion of
the National Monument, including all of the monument in Garfield
County, Utah. In this capacity I had responsibility for overseeing
management of field-level management on the northern half of the
monument including recreation, wildlife, range, and road management. At
the monument I reported to a monument-wide manager named Rene
Berkhoudt.
I did not have authority over law enforcement, as that element is
managed through a stove-pipe operation where a state-level BLM law
enforcement officer directly oversees field-level law enforcement
officers (LEOs). However, I did have authority over all of the
activities for which an LEO could issue a citation or make an arrest,
and for identifying the priorities for LEO involvement within the
Escalante Field Station area. Jeffrey Lauersdorf was the LEO assigned
to the Escalante Field Station.
In 2009 my office had arranged for the Utah Division of Wildlife
Resources (DWR) to hold a special elk hunt in an area called the Circle
Cliffs in eastern Garfield County, some 50 miles east of Escalante. We
requested the hunt on the advice of the Monument's wildlife biologist
to decrease grazing pressure by elk on a large area that had recently
been reseeded by the BLM. To participate in the hunt, hunters had to
draw a permit. There was high interest in the hunt due to the
reputation of the area as a high quality hunting area.
At 4:30 p.m. on November 6, 2009--the day prior to the start of the
hunt--I received a telephone call from a DWR manager in Wayne County,
Utah. He was concerned because his staff had visited the site of the
impending hunt and discovered that carsonite posts with official ``no
motor vehicles'' posters on them had been placed on several spur roads
and undeveloped camping areas, allegedly by ``someone from the BLM.'' I
informed him that I had no knowledge of this and committed to
investigate. Immediately after I terminated the call I received another
call, this one from the Garfield County Engineer, who called with the
same concern. He called after hearing complaints from county residents
who were planning to participate in the hunt. He was particularly
concerned given the county's assertion of RS 2477 rights to several
roads in the area in the Circle Cliff area. Again, I promised to
investigate. I immediately drove to the area in question. I drove a
government-licensed truck and wore an official BLM uniform. When I
arrived at the Circle Cliffs I confirmed the accuracy of the DFW and
county telephone calls. Most of the side roads were blocked by newly
installed carsonite ``no motor vehicle'' signs. Also signed were many
areas historically used as undeveloped vehicle-accessed campsites.
I was also approached by several prospective hunters camped near
the main road concerned that they could not access their usual and
accustomed hunting and camping areas. They confirmed that the signs had
been placed by a uniformed LEO from the BLM. From their descriptions I
concluded that the LEO was Jeff Lauersdorf, an LEO out of the Escalante
Field Office, who had a history of rouge enforcement actions,
principally aimed at hunters, ranchers, and ATV enthusiasts.
In preparation for this hunt I had given no thought to closing
either roads or camping areas. Mr. Lauersdorf had not consulted with me
concerning his plan to close roads, and law enforcement officers have
no authority to unilaterally close roads. That is a management
decision, and I was the field-level management authority for the Circle
Cliffs area. At no time did I ask Mr. Lauersdorf to engage with the
Circle Cliffs hunt. In fact I had asked staff, including Mr.
Lauersdorf, to leave management of the hunt to DWR, as it was their
responsibility.
Given the situation I concluded that leaving the road and camping
area closure signs in place would be extremely disruptive to the next
day's hunt. It was also illegal, and I already knew that both DWR and
Garfield County were very concerned. It was now past 6 p.m. and, as
this was early November, nighttime was fast approaching. As it would
have been impractical to obtain assistance at this time of day I
proceeded to remove the signs, which I did by wrapping a chain around
the sign, hooking the other end of the chain to my vehicle's trailer
hitch, and pulling the signs using my vehicle. I did not count the
number of signs that I pulled, but it was certainly over 20. By the
time I had finished it was dark and past 10 p.m.
At a location near the Lamp Stand, a prominent rock outcropping at
the northeast end of the Circle Cliffs where I had pulled the last
sign, I saw headlights coming toward me from the south. I assumed it
was a hunter coming to set up camp. When the vehicle reached my
location I saw that it was Mr. Lauersdorf, driving his BLM vehicle and
wearing his uniform. He stopped his truck abruptly and walked directly
to me. He looking in the bed of my truck, saw the signs, and angrily
challenged my decision to remove the signs. I informed him of my reason
and of the fact that signs are not to be placed in the Escalante Field
Station area without my permission. Without comment he proceeded to
transfer the signs from my truck to his. I did not intercede as I was
aware that (1) we were miles away from the closest person, (2) he was
agitated, (3) he was armed with at least three firearms and a knife,
and (4) he had a history of impulsive and irrational behavior. In
short, I was concerned for my safety. After transferring the signs he
came up to me, placed his hand around the handle of his holstered
pistol, and, at very close distance, told me the he ``was arresting me
for destruction of government property.''
Fearing for my safety, I pointed my finger at him and told him to
back off. He backed up a step or two. I bolted for my vehicle, jumped
in, and proceeded to leave by driving through the sage brush to the
nearest unimproved road. He followed me, with both of us moving at
fairly high speed for this type of road. He followed me for less than a
mile and then stopped.
I returned the next morning to observe how the hunt was proceeding.
I stopped at the larger camps. I was informed that a BLM LEO had
visited the camps earlier in the morning, and that the officer had
asked occupants for their hunting and driver's licenses. They
questioned why a BLM officer was asking for this information. I met one
hunter who informed me that earlier that morning he had been driving
his UTV down a Circle Cliffs secondary road and was pulled over by Mr.
Lauersdorf, who proceeded to ask for his licenses. After the hunt I
spoke with a gentleman from Kanab. The gentleman, who was a disabled
hunter participating in the hunt, had been pulled off the road by Mr.
Lauersdorf on the morning in question. He told me that the officer had
shocked him with his abrupt manner of approach and, as a result, the
hunter pulled his vehicle off of the roadway and onto the adjacent sage
brush. Mr. Lauersdorf proceeded to threaten to give a ticket for
driving off of the road. Mr. Lauersdorf then asked for his hunting
permit. After reading it Mr. Lauersdorf told the man that his permit
did not cover this hunt and ordered him to leave. He was informed that
if he left he would not receive the ticket for being off road. The man
left and, after the fact, was informed by DWR that his permit was, in
fact valid for this hunt. I was particularly concerned with this
situation as the man was disabled, and had gone to considerable effort
to participate in the hunt.
The next Monday morning I informed the monument manager, Rene
Berkhoudt, of the weekend's events. Concerning the placement of signs,
Berkhoudt suggested that he had not spoken to Mr. Lauersdorf before the
hunt and had no knowledge of the plan to sign the roads and camping
areas. Concerning Mr. Lauersdorf's threat to arrest me, Berkhoudt said,
and I quote, ``Jeff sometimes gets excited. I will have a talk with
him.'' I was never informed that such a talk took place.
This is a true depiction of the events that took place, to the best
of my knowledge. I am quite certain of the date of Friday, November 6
but do not have records to verify the date. It may have been Friday,
November 13. I know that it was a Friday evening in early November
2009.
______
State of Utah,
Office of the Lieutenant Governor,
July 17, 2014.
Hon. Rob Bishop, Chairman,
House Subcommittee on Public Lands and Environmental Regulation,
1324 Longworth House Office Building,
Washington, DC 20515.
Dear Chairman Bishop:
Thank you for convening a committee hearing of the Public Lands and
Environmental Regulation Subcommittee to consider issues related to
Bureau of Land Management (BLM) law enforcement activities within the
State of Utah. Before addressing our concerns, let me state that we
enjoy a very positive and productive relationship with the BLM State
Director Juan Palma. He has been consistently attentive to matters that
interest the state and swift to respond to requests for meetings, phone
conferences, or information. We are fortunate to have him at the helm
of the agency that manages more than half of Utah's land.
Unfortunately, I cannot extend the same compliments to BLM law
enforcement operations in Utah that, regrettably, do not fall under
Director Palma's supervision.
To give you some background, I came to my position as Lieutenant
Governor after having served as Sanpete County commissioner and as an
elected representative in the Utah Legislature. I have deep roots in
our rural culture; and am proud of the integrity and self-reliance of
our local elected officials. Over the past several years, I have heard
an increasingly loud chorus of voices expressing concerns on the
intrusion of Federal law enforcement officers into matters that fall
clearly within the jurisdiction of our county sheriffs and a lack of
cooperation in those areas which traditionally have involved common
Federal-local concerns. Examples include the issuance of traffic
violations on county roads both on and off the BLM lands and
confrontation and intimidation of local residents accusing them of
minor civil infractions of BLM protocols.
Another matter of concern is how the BLM law enforcement handled
the arrest and charges relating to possession of Indian artifacts
allegedly taken from BLM lands in southwestern Utah. The BLM law
enforcement executed that operation in an unnecessarily aggressive
manner. It was an ``invasion'' of a small town involving an unusually
large number of officers. The SWAT team approach to non-violent crimes
reflected the arrogance and insensitivity of the law enforcement team
involved.
The BLM approach at the Bundy Ranch, in which Utah's BLM Agent in
Charge was heavily involved, further demonstrates a lack of judgment.
The near disaster at the ranch was brought on by the massive BLM
response to a situation involving unlawful grazing and failure to pay
fines and fees. This could have been avoided by a reasoned, balanced
approach. Yet, overkill seems to be the default response of Utah's BLM
Agent in Charge.
Another very troublesome issue is cooperative law enforcement
contracts with our county sheriffs. The Federal Land Policy Management
Act (FLPMA) states that the Secretary shall contract with local law
enforcement to the greatest extent possible for law enforcement
services on public lands. Historically, BLM has delegated law
enforcement authority to county sheriff departments to enforce state
and local BLM's laws on Federal lands. Such contracts are in place on
Forest Service (FS) lands in Utah. Yet, recently, these same contracts
have been difficult and in some cases impossible to negotiate due to
resistance from the BLM Utah Law Enforcement Chief.
In March of this year, I convened a group of county commissioners,
sheriffs, legislators, and the law enforcement agents in charge for
both the BLM and the FS to discuss these issues and seek resolution. At
that time, we explained our concerns and constructively discussed them
concluding with a ``next steps'' proposal. The BLM Agent in Charge
stated that he did not approve contracts out of a concern for lack of
``deliverables.'' He agreed to give us a written description of what he
meant by deliverables and provide additional documentation explaining
his refusal to renew these contracts. Regrettably, he has not provided
the requested information, nor have we seen improvement in the
attitudes and performance of Federal law enforcement officers working
in the state.
I am hopeful that as you consider our concerns in the course of the
hearing, the BLM will respond appropriately to ensure that Utah enjoys
the same productive partnership with the Federal law enforcement
operations within the state that we have with the BLM State Office.
Respectfully,
Spencer J. Cox,
Lieutenant Governor.
______
State of Utah,
Office of the Attorney General,
July 23, 2014.
Hon. Rob Bishop, Chairman,
House Subcommittee on Public Lands and Environmental Regulation,
Washington, DC 20515.
Dear Chairman Bishop:
I appreciate your convening a committee hearing of the Public Lands
and Environmental Regulation Subcommittee regarding law enforcement
activities by the Bureau of Land Management (``BLM'') within the State
of Utah. I have read the letter dated July 17, 2014 submitted by Utah
Lieutenant Governor Spencer J. Cox to you. I agree with the both the
content and concern expressed by the Lieutenant Governor and
incorporate by reference much of what he communicated.
I, too, would underscore the fact that Utah has had a long and
often productive relationship with the BLM over decades and that the
current approach and implementation of policies under the BLM State
Director, Juan Palma, has been both positive and productive. Just
recently, on his own initiative, Mr. Palma took me and a member of my
staff on an in-depth tour of his office to increase working
relationships and understanding between his office and mine. It was
educational and helped build further trust between a Federal and state
agency. Also, one of the past national directors of the BLM, Kathleen
Clarke, is from Utah and works closely with our office daily in her
role as head of Utah's Public Lands Office.
In contrast to the relationship with Director Palma and former
Director Clark, the level of trust and respect for law enforcement
under the BLM, seems marginal at best throughout my state. Like our Lt.
Governor, I have heard consistent and repeated concerns from the ranks
of well-respected and reasonable county commissioners, county attorneys
and sheriffs, among others, from counties across my state, regarding
what they perceive to be strong-arm tactics, overstepping of authority
and attitudes dismissive of county interests by the BLM.
I understand the difficulties facing the Agent in Charge (``AIC'')
of law enforcement in Utah. As a fellow law enforcement executive, I
manage a state agency with hundreds of employees, including dozens of
investigators/peace officers. I understand the complexity and many
competing interests at play in making every policy decision. I am loath
to judge any other executive without knowing all of the considerations
facing that leader. Moreover, the AIC has also demonstrated
professionalism in our limited personal interactions and been cordial
and responsive to me. Nevertheless, I can judge the effect of his
decisions on those in my state and, in this case, his decisions have
created a void of trust from too many in Utah.
While I have expressed to him my absolute belief, that despite
political or personal differences, law enforcement officers at the
Federal, state, county and city level need total solidarity in the
field (a philosophy to which I continue to hold strongly), the lack of
trust toward the BLM law enforcement arm has deteriorated to such a
degree, that I am afraid investigators, agents or other law enforcement
from his agency, the Utah Attorney General's Office and other law
enforcement agencies are not as safe or effective as they could be in
multi-agency situations or cases due to such strained relationships.
I hope this perspective provides some assistance to the committee
as it hears testimony and deliberates in this matter.
Respectfully,
Sean D. Reyes,
Utah Attorney General.
______
Mohave County Board of Supervisors,
Lake Havasu City, AZ,
July 29, 2014.
Hon. Rob Bishop, Chairman,
House Subcommittee on Public Lands and Environmental Regulation,
Washington, DC 20515.
Dear Chairman Bishop:
My name is Buster Johnson and I have been a Supervisor for Mohave
County, AZ for 17+ years. I am also retired from Los Angeles County
Sheriff's Department. Over the years, I have had a mostly good working
relationship with BLM enforcement officers in both jobs. This year is
the first time that I have had to question as to how Mohave County will
work with BLM officers. It has nothing to do with the officers
themselves; it is the leadership in BLM.
The Bundy incident in Nevada, which borders our county, caused us
great concern due to the handling of the situation. I believe we saw
the incident escalated to a dangerous level by BLM leadership or lack
thereof. We teach our local law enforcement people to defuse situations
which may arise, not to throw gas on the fire.
The Federal Government is, from time to time, inexplicably guilty
of bullying and in the process of serving arrest warrants on some
involved in the Bundy incident which we believe will once again flame
the fires of discontent. Clearly, Mr. Bundy needs to pay his grazing
fees, and I believe the BLM was within their legal right to try to
collect grazing fee arrearages. However, no one in their right mind
would design and carry out such a heavy handed, ham-boned raid which
sets a bad precedent and places the safety people living near public
lands in jeopardy. I agree with the pending arrests but believe the
issuing of a summons would work better to keep the possible violence to
a minimum. Waiting until after the first of 2015 might also help.
Mohave County signs an agreement to allow the feds to enforce Arizona
state law in our county. To date that agreement has not been signed due
to our concerns over BLM's use of its police powers.
I wish to express my empathy for other counties across the Nation
trying to work with BLM law enforcement officials--it is crucial that
we work this out and the sooner the better.
Sincerely,
Buster D. Johnson,
Mohave County Supervisor,
District III.
______
Custer Battlefield Museum,
Garryowen, Montana,
July 22, 2014.
To Whom It May Concern:
My name is Christopher Kortlander. I own and operate the historic
town of Garryowen, Montana, the only town inside the perimeter of the
Custer Battlefield. I am also the founding director of the Custer
Battlefield Museum in Garryowen.
In 2005 a small army of Federal law enforcement agents descended on
Garryowen with drawn fully automatic machine guns. Federal agents
pointed guns at Garryowen employees and museum interns while executing
a search warrant that was obtained by deceit and the twisting of truth.
This `raid' was conducted as a military style assault on a domestic
terrorist cell. The Federal agents had not received any information
stating that the target(s) of their assault were in any way violent. In
addition, there were a number of civilians/tourists present who were
also put in harm's way during this raid at Garryowen, which was and
remains a historic site and popular tourist destination, as well as a
state-recognized informational center, housing a U.S. post office, a
gas station, convenience store, museum, Subway sandwich shop and a
retail trading post selling souvenirs.
For 8 hours, the BLM agents conducting the `raid' at Garryowen,
continually threatened me with never again seeing my special needs son,
stating that I was facing decades in a Federal prison. BLM Federal law
enforcement agents verbally harassed me, accusing me of being a baby
killer, a swindler and a con man, and asserting that I was going to be
charged with nine Federal felonies.
After a day terrorizing all the civilians they encountered, and for
the following 4-plus years, they continued to threaten me through the
U.S. Attorney's office, and retained seized property that was
unassociated with any crime whatsoever. I was forced to expend hundreds
of thousands of dollars and nearly every waking moment, as well as
countless sleepless nights, dealing with the legal threats thrown at
me, evidently because I needed to be rolled over to advance an agenda
that benefited only the BLM and the Federal agents involved.
When the U.S. Attorney announced that there would be no charges
filed against me, I sued the 24 Federal agents involved in prosecuting
me, and found that I could not legally engage them because of the
quasi-immunity that protects Federal law enforcement agents and
prevents them from being held accountable for any wrongs they may
commit. These men and women who had persecuted me in the 2005 raid--and
those who came to conduct another raid in 2008--were beyond my reach
and the reach of any non-agency review. They remained free to harass
and attack me and others without any personal accountability or
responsibility for their actions. The quasi-immunity enjoyed by BLM and
Federal Fish and Wildlife law enforcement agents means that they are
not accountable to me, the American public, the U.S. Court system, or
the U.S. Congress. They are untouchables, protected no matter what they
do.
Following the end of the investigation and the numerous threats of
prosecution made against me, I received--anonymously--a 52-page
document which stated that the BLM raids on Garryowen, Gibson Guitar,
and the Four Comers incident in Blanding, Utah, were all connected to
the same agency and at least one Federal special agent who were on a
mission to enhance their personal status and increase BLM funding from
Congress. The actions of the law enforcement agents in the paramilitary
raids on Garryowen, the Operation CERBERUS Action in Blanding, Utah,
and the Gibson Guitar raids served only the political purposes of the
BLM.
At Garryowen, Federal machine guns were pointed at the head of a
museum intern who had been forced to the ground spread eagle--not for a
pat down consistent with the safety of the abusive law enforcement
agents, but rather as a show of force to intimidate and threaten this
uninvolved young citizen into fearfully accepting the government's
`might makes right' posture.
I was victimized as a criminal although I have no criminal history.
I was denied constitutional protections because these apparently do not
attach until charges are filed. The same Federal agents who executed
search warrants pursued a fruitless investigation that served only to
make me appear to be a criminal to family, friends, colleagues, and
business associates, in the process destroying my personal reputation,
my businesses and business relationships, together with other
opportunities that I had spent more than a decade developing.
Despite my obvious efforts to cooperate with the Federal agents
involved, during the raid I was accused of being a baby killer, and had
my private residence (which was NOT on the search warrant) forced open,
entered, and searched. Hundreds of artifacts--personal and private--
together with tens of thousands of pages of documentation and other
assets were seized, all of which were outside the scope of the search
warrant used by the BLM.
No items listed on the search warrant--four buttons and a suspender
belt buckle--were taken. After more than 8 hours of scaring and
intimidating me, my employees, and volunteer staff, this arrogant
assembly of Federal agents departed. My business and philanthropic
endeavors were laid to waste and I was left financially destroyed. All
that was missing was Federal charges, but despite seizing a mountain of
so-called evidence, no charges were ever filed.
What had happened to me can only be described as a non-judicial
prosecution, or more correctly, an extra-judicial persecution by BLM
Federal agents. Federal charges were threatened for the next several
years, but charges were never filed, and nearly 5 years after the
`raid' the U.S. Attorney indicated that the investigation was completed
and that NO charges were to be filed against me. Despite that fact, it
is unreasonable to say that I had not been abusively prosecuted by the
Federal agency involved.
The BLM retained hundreds of artifacts until their so-called
investigation had been completed nearly 5 years later, and they
continued to hold dozens more after that time, initially alleging that
these artifacts were absolute contraband and unlawful to be possessed
even by a museum, and later insisting that the artifacts were
derivative contraband based upon the manner in which they had been
obtained or retained by me and the museum with which I am associated. A
Federal claim for the return of these items was filed and just this
winter (2014) all of the items sought were finally returned to the
Custer Battlefield Museum in Garryowen, MT.
Seized documents had been previously returned, but thrown about in
such a manner that it is impossible to restore the organization that
existed at the time the BLM agents carted them away. It is impossible
for me to even know if what was returned is in fact ALL of the
documentation that was seized. I have been unable to find a number of
museum documents I know that I possessed prior to the BLM raid.
It is important to note, once again, that no charges of criminal
activity of any sort were ever filed in this matter. That action would
have moved the matter into Federal court where constitutional
protections against the actions of Federal law enforcement agents and
the Federal agency they support would have arisen. However, without
Federal court supervision, the ``800 pound gorilla'' that is the
autonomous Federal agent, cloaked with the power and authority of the
U.S. Government, remains free to use unrestrained, military-level
tactics and weaponry and the threat of force to crush citizens--
frequently guilty of nothing--and in the process, destroy the
businesses and lives of their victims with impunity.
These Federal agents do not appear to answer to anyone other than
possibly their peers--those also in agency law enforcement. Their
methods are secret, their endeavors blacked out when pursued through
Freedom of Information requests, and protected by judicial quasi-
immunity granted to any Federal law enforcement agent from the prying
eyes of their victims, the press, and apparently the people's
representatives in Congress. Even though the Supreme Court recognized
the right of the citizen to hold the workers of the Federal Government
personally accountable for their actions, the hurdle for a victim to
get into court is generally impossible with ill-defined rules and
standards, especially regarding Federal law enforcement agents.
I remain fearful today--not because I am guilty of any criminal
activity--but because the unrestrained power of Federal law enforcement
agencies to use force and intimidation to strike fear into the hearts
and lives of law-abiding citizens remains in place, allowing these
reckless agents and agencies to destroy lives and livelihoods and seize
personal possessions without reason or accountability to the citizens
of these United States or to the letter and spirit of the laws that
regulate their activities.
It is time for the U.S. Congress to reign in this self-serving
agency that uses Federal paramilitary force to further its own agenda,
and believes itself to be beyond reproach or accountability. Thank you
for your consideration and concern regarding this matter.
Sincerely,
Christopher Kortlander,
Founding Director.
______
[LIST OF DOCUMENTS SUBMITTED FOR THE RECORD RETAINED IN THE COMMITTEE'S
OFFICIAL FILES]
Correspondence dated March 28, 2014 and May 9, 2014 from Jacob
S. Lubera, District Ranger, U.S. Department of Agriculture,
Forest Service, Santa Fe National Forest, Jemez Ranger District
to Friends and Neighbors regarding a proposed riparian
improvement project along the upper Rio Cebolla where it
crosses Forest Road 376.
Correspondence dated July 9, 2014 from Allan R. Setzer,
District Ranger, U.S. Department of Agriculture, Forest
Service, Santa Fe National Forest, Cuba Ranger District to
Friends and Neighbors regarding a proposed project along the
upper Rio Cebolla where it crosses Forest Road 376.
[all]