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There is Good News!

Generally this column is filled with the bad news of the day. There will be some of that, but first, let’s celebrate some wins.
In late August the Federal District Court in North Dakota granted an injunction against the Environmental Protection Agency’s (EPA) draconian Waters of the U.S. regulations. The regulations were scheduled to take affect on August 28, 2015. For New Mexico and 12 other states the rules did not take hold, at least until the litigation moves forward.
Unfortunately there were about 30 other states who were not involved in the North Dakota case who are protesting the rules that were not included in the injunction. When asked to apply the ruling to all of the states challenging the EPA, the judge declined. He didn’t find those cases less compelling. The judge just thought other judges should have the opportunity to rule on the cases in their jurisdictions.
In the 12 other states that did get an injunction, their attorney general filed the complaint against the EPA over-reach. New Mexico always has to be just a little bit different. In the absence of action by the New Mexico Attorney General, two members of Governor Martinez’ cabinet carried the water for New Mexicans.
A heart-felt thanks is extended to Secretary of New Mexico Environment Department Ryan Flynn and New Mexico State Engineer Tom Blaine. Had it not been for the actions of these gentlemen who understand the very real impacts of the Waters of the U.S regulations, we would be talking about how in the world our state’s agriculture community would deal with government control of every drop of water around.
We have extended invitations to both Flynn and Blaine to speak at the 2015 Joint Stockmen’s Convention. Hopefully you will come to thank them yourself.

The Fowl Ruling Wasn’t Foul… but there is still time for that

Hopefully everyone knows the time, effort and money that is being spent on litigation against the U.S. Fish & Wildlife Service’s (FWS) listing of the lesser prairie chicken as threatened under the Endangered Species Act (ESA). Cases have been filed in Tulsa, Oklahoma; Washington, D.C. and Midland, Texas.
While the Oklahoma and DC cases were fighting over venue, the Midland case was on the move. On September 1, 2015 that Court vacated the chicken listing.
Great news… but not so fast. The FWS has until the end of October to file an appeal. There is no reason to believe that they will not appeal.
For that reason, the other cases must progress to fruition. The work and the fund raising to pay for the work continues.
In related actions, later in September the FWS announced that it would not be listing the greater sage grouse as threatened or endangered. Instead the agency will deal with conservation of the cousin to the lesser prairie chicken via management plans. There is a great deal of discussion about the pros and cons of this decision, which we can explore at a later time.
It is interesting to note that the notice not to list the sage grouse used language very similar to the reasoning the Midland judge used to vacate the lesser prairie chicken.
The truly optimistic could see a future where the Midland case wouldn’t be appealed… but I cannot even be that
hopeful.

Workers Comp

New Mexico’s agriculture exemption was ruled unconstitutional in June by the New Mexico Court of Appeals… along with a punitive punch eliminating the exemption back to March 2012. The case was immediately appealed to the New Mexico Supreme Court.
On September 2, 2015 the Supreme Court accepted the case, on both counts, for consideration. That should be good news. According to appellant rules, that acceptance creates an automatic stay on the enforcement of the earlier ruling until such time as the Supreme Court has ruled.
Unfortunately the Workers Compensation Administration (WCA) doesn’t view the rules in the same way appellant attorneys do. The WCA is busy “educating” the agricultural community with public meetings and radio commercials on workers comp insurance being required. Word is that retroactive complaints have been filed against a few dairy producers that the WCA is pursuing.
There are many unanswered questions on who is required coverage and how they should be covered. There is question even on how an employee is defined. The WCA has informed agricultural groups that everyone who works on their ranch or farm must be covered, including day laborers, independent contractors and neighbors who receive no pay. Any owner of even a small fraction of a corporation must also be covered.
In late September a motion was filed with the Supreme Court in search of clarification that will forestall WCA efforts on agriculture until that Court has ruled. There is no timeline for a response from the Court.
In the meantime, all agricultural producers are encourage to be in touch with their insurance agents to plan a course of action. Many who have already done that have found workers comp coverage to be cost prohibitive. One small ranch owned by many members of the family, but operated most of the time by two family members was quoted $23,000 on a $50,000 payroll. A re-figure by the same agent came back with a cost of $7,000. That is a better number but is still well over 10 percent of payroll and likely cost prohibitive.
We will report on the action of the Supreme Court on the motion as soon we hear it.

Wolves… the good and the bad

The New Mexico State Game Commission held their ground and denied the FWS appeal of the Commission’s denial of a permit to release wolves. Many, many New Mexicans who can’t show up at meetings and/or who know how to behave in public offer great thanks for this action.
However, it seems pretty clear that the FWS will ignore New Mexicans and New Mexico government and will move forward with their plans to release more wolves and expand their territory from I-40 south and from the Texas border to the California border.
Litigation is ongoing, but briefing schedules go out for a year, so there won’t be any reprieve on that front for some time.

IRS extends drought replacement

Word is expected in mid October that the Internal Revenue Service will extend the replacement period for livestock sold on account of drought in specified counties. Stay tuned for more information.
It goes downhill from here
In mid September hundreds of landowners received letters from the New Mexico Department of Tax & Revenue demanding gross receipts taxes on the grant of access fees that may have been charged for hunting and/or fishing on private property.
As you may know, landowner hunting tags offset the cost of habitat provided to state’s elk and antelope are issued. Thus far we have had contacts only from those receiving elk tags.
As we understand it, the tax is not due on the tags themselves, but rather the price that is put on right of access to private land. Remember, the landowner tags are not licenses to hunt. Hunting licenses must be purchased from the New Mexico Department of Game & Fish. The landowner is selling the right of access.
Please be advised that NMCGA is working on the situation. Some members have been told that they must go back 10 years for audit and may be subject to penalties and interest for that time period. Discussion with accountants indicate that they can only go back three years. We will continue to research this.
According to the letter from Tax & Rev, landowners have until November 19, 2015 to return their “managed audits”. For those who do return the audits and pay the tax due within 180 days, the penalty and interest may be waived.
The issue has come up for probably two reasons. First the New Mexico Wildlife Federation is fighting for the elimination landowner tag program. We anticipate legislation on the issue in the 2016 Legislature.
The second is work that has been done by the New Mexico Council of Outfitters & Guides. There appear to be numerous out-of-state outfitters who are buying landowner tags. It is believed that taxes are not being appropriately paid for those tags. The Outfitters have kindly provided a “frequently asked questions” sheet that has been emailed out. If you would like a copy of it mailed to you, please call the NMCGA office at 505/247-0584 to request it.
As soon as we have more information, we will distribute it.

Can’t see the forest for the trees

This was a phase my father used to get me to look at the whole picture rather than focusing on the details. Today it is a reality.
I had the occasion to spend the better part of a day in the Lincoln National Forest recently, something I hadn’t had a chance to do for a long time. The condition of the forest is appalling. You literally can’t see the forest for the trees. There is so much dead and downed timber that it has to be a significant hazard to wander through those trees… if you can fit between them. You certainly couldn’t travel it a horseback.
I spend a lot of time criticizing the U.S. Forest Service (USFS). These comments aren’t intended to chastise the agency, but to point out the impossible task that they have been handed. The original mission of the USFS was to produce timber and manage forests watershed to provide water down stream. Now they are charged with balancing a wide variety of competing interests – most of them not even resembling the mission of the agency.
Producing and managing timber doesn’t even seem to be among those competing interests. With no timber management, there is no watershed management.
It seems to me that many, if not most, of those competing interests are diametrically opposed to what was the mission of the agency. Timber management stopped because of the spotted owl. Now trees have grown to the point that there is little left but fire to clean them out. Unfortunately that fire isn’t a controlled/prescribed/managed burn, but rather a catastrophic fire that damages the landscape and all of its’ inhabitants for generations to come.
The USFS fire fighting costs topped $250 billion so far this year. Just imagine the good that could have been done with that money to bring forests back to Disney pristine conditions where rabbits and deer could live – even if they weren’t taking care of each other.
That cost doesn’t even contemplate the cost of thousands of homes and businesses that were lost this year, the human cost of fire fighters who gave their lives, or life as they knew it, of residents who died in fires because they couldn’t get out of their homes.
It makes one wonder what it will take to wake up the American public to what is happening to the forests they claim as their own and take such pride in calling wilderness or the wild. Something came through my email in the last few days talking about the serious pollution in forests. I immediately thought of the horrific air pollution that these fires create. But I was wrong again. People were railing about the terrible dust pollution caused by roads and trails in forests. Get real people! Stop pursuing your own selfish agenda and look at the trees that are blocking the forest.
The livestock and timber communities are not looking for their own personal forests. They are working toward a forest that all can benefit from and enjoy.
Most people are completely unaware of the impact forest management has on water supply. Without healthy, functioning forests there isn’t going to be any water. Rather than address the forest issues, many blame “climate change” for the drought conditions and water shortages that are on the horizon, why aren’t we devoting energy to our forests?
Part of the reason for my forest visit was to see the impact of projects intended to protect mice, that may not even be there, that are impairing water delivery down stream and threatening cattle operations that support rural communities and local economies. Thankfully this abundant rainy season has water flowing where it hasn’t for some time. But we know that will change. Hopefully not this coming year, but there will be another dry year at some point.
The USFS is attempting to slow the water down and spread it out, which they don’t believe impairs water delivery. It is just changing the time of delivery and the volume of delivery. Seriously?
I know I am preaching to the choir, but if even one person becomes proactive in saving our natural resources from people who only want only to look at a single competing interest, I have done something. n