New Mexico faces the greatest environmental challenge of all-politics.
John Horning is a predator.
You can tell by the conviction of his words and the intensity of his eyes. But he is also prey, evidenced in the hair disappearing from his forehead and reincarnating in the unshaven stubble along his jaw line. He possesses the sinewy features you might expect of someone who runs endurance marathons for fun, but sprinting beyond exhaustion also happens to be good practical experience for his day job.
Horning is the executive director of Forest Guardians, an organization that advocates on behalf of the environment with the same fervor it repels those bent on ravaging it. There is
no such thing as downtime in this line of work. There is always a petition to be filed, a politician to fight or a prairie dog to save.
The familiar suspects on both
sides of the divide-environmentalists and groups representing ranchers and property-rights advocates-have geared up numerous times over the years, in the media and the courts.
But with the Bush administration leaving no stone unturned or tree uprooted in its battle to render environmental regulations impotent, the conservation struggle has evolved into an all-out war in which New Mexico environmentalists have found themselves
caught behind enemy lines on multiple fronts.
"Legislatively, New Mexico-while not being ground zero-has critical political players," Horning says. "Administratively, New Mexico really
is
ground zero."
Indeed, the state hosts both
numerous habitats
under debate and, more critically, prominent federal players.
The fiercest fighting currently resides
on the bloody ideological battlefield of the most revered and reviled environmental legislation in American history: the Endangered Species Act.
"There is absolutely no question that the Endangered Species Act is on the chopping block," Nicole Rosmarino, conservation director for Forest Guardians, says. "It's been around for 32 years now and it's had the consistent, overwhelming support of the American public. But now it's the closest it has ever been to being eviscerated."
It was the best of times, it was the worst of times, it was the age of wisdom, it was the age of foolishness, it was the epoch of belief, it was the…
Hold that thought, Chuck.
This is pretty much just the worst of times for environmental activists. An age of foolishness. An epoch of incredulity. A season of darkness. A winter of despair. This is
A Tale of Two Dicks
.
The first is Richard Nixon. Among other things, he signed the Endangered Species Act into law in 1973 with the purpose of protecting threatened and endangered species and the ecosystems upon which they depend.
The second is Richard Pombo. The Republican
congressman from California is at the forefront of the most comprehensive and controversial legislation to ever shake the ESA's core. Precisely what his "Threatened and Endangered Species Recovery Act of 2005" portends for the statute depends on who you ask.
While the nation watched in horror as New Orleans waded in its own putrid morass, Pombo's bill won House approval in a scant 10 days last September, due in large part to a clandestine push enabled by the Republican stranglehold on power. At the time, US Rep. Tom Udall, D-NM, was one of the few who mustered any opposition to the legislation, calling the bill a "rocket docket" with helpless disdain.
"If you look at the legislative history of this bill it had very little time for public input," Udall says. "The purpose of a lightning schedule like this-which has been established by the Republicans-is to prevent public input."
Udall ultimately voted against the bill while the rest of the New Mexico delegation, Republicans Heather Wilson and Steve Pearce, voted for it. A single witness was called to give testimony on the bill in the one House hearing on the subject. The witness was Craig Manson.
Manson is an Air Force veteran raised in
New Mexico and California before becoming a lawyer, first for a private
Sacramento firm and then as general counsel for the California Department of Fish and Game. Manson
eventually rose to California Superior Court judge before he was nominated by George W Bush to become an assistant secretary with the Department of the Interior in charge of overseeing Fish, Wildlife and Parks.
When Manson appeared before the House to testify to the merits of the Pombo bill, he noted the bill had been introduced just two days prior and that his agency had not had "sufficient time to fully
analyze the legislation or to develop a formal administration position on the bill."
The bill passed eight days
later.
"The one witness that came forward in the
short hearing that we had was an administration witness [who] hadn't even had time to review the bill," Udall says.
Which may have been the intent. Udall says that Manson's boss, Department of Interior Secretary Gale Norton, gave a "scant" statement in support of the bill but failed, in Udall's estimation, to give any compelling reasons why.
"This is an ideological agenda," Udall says. "This is an effort to ram something through without giving it serious thought and consideration. That's because I think they're very scared of the response they would get if they had open hearings and took time to listen."
Not that Udall didn't try. He says his staff worked feverishly with the House minority committee and called in experts to help analyze the bill. Experts such as Jaime Rappaport Clark, the former national director of the Fish and Wildlife Service during the Clinton Administration, who told Mother Jones magazine that provisions in the Pombo bill would create an atmosphere where ESA enforcement would be "like the fox
watching the chicken house." But it was too little, too late.
Udall helped draft a substitute to the Pombo bill that put greater emphasis on species recovery plans, established a stronger definition of how a species can be jeopardized and still included an incentive program for private land owners. The substitute was soundly rejected and the Pombo bill passed through the House virtually unscathed. Land owners and wise-use advocates-to say nothing of industry lobbyists-rejoiced.
"I think the key component of the bill is that it's written from the perspective of trying to balance the needs of protecting the species as well as protecting human rights," Nancie Marzulla, president of Defenders of Property Rights, says. "The current ESA is an old statute.
It really needed a good overhaul and it needed to be recut with the perspective of focusing attention on steps taken to protect species as well as protecting the rights of land owners."
Environmental activists, however, bemoaned the bill's passage as grossly negligent of due process and a de facto stamp of approval for gutting the ESA.
Further, the Pombo bill is not alone.
In December, similar ESA reform legislation
was
launched
by
Sen. Mike Crapo, R-Idaho. His name is pronounced
cray-po
, not
crap-oh
, but "oh crap" is precisely what environmentalists are saying about the senator's bill. Like the Pombo bill, it has a fairly
innocuous title, the "Collaboration and Recovery of Endangered Species Act." But Liz Godfrey, for one, doesn't buy it.
Godfrey is the Santa Fe-based program director for the Endangered Species Coalition, an organization that bands together some 360 separate organizations-including Forest Guardians. Godfrey says the bills are couched with the same subtle audacity of Bush administration policies like the "Healthy Forests Initiative," pushed through as a Trojan horse for the deregulation of environmental protections.
"Both bills would take critical decisions about protecting endangered species out of the hands of scientists and put them into the hands of political appointees," Godfrey says. "Rather than a scientific
decision it becomes a political science decision."
Bad news for scientists such as Brian Nowicki, a conservation biologist for the Center for Biological Diversity in Tucson, Ariz.
"Really I can't think of it being much worse than the Crapo bill," Nowicki says. "The few things that Pombo's bill forgot to beat up on, forgot to gut, forgot to undermine, Crapo does. If you put them together in committee you have basically a perfect all-out attack on the
ESA."
Even some ESA reform
advocates are not completely
comfortable with Crapo's bill. Howard Hutchinson, a Pleasanton rancher and executive director of the Coalition of Arizona and New Mexico Counties, says the bill's incentive program is filled with tax credits that benefit large land owners and not small-time ranchers like those he represents.
Hutchinson also serves on the board of the Environmental Conservation Organization, which advocates for ESA reform on behalf of rural communities and private land owners. He also takes issue with provisions in both bills that would make the designation of critical habitat-which boasts the ESA's most stringent prohibitions-up to the discretion of political appointees.
Political discretion is of concern to both sides in the battle. ESA advocates such as Godfrey also admit the law could use revision-in the form of strengthening. But not, she says, "in today's political climate."
The forecast for today's political climate: scattered mushroom
clouds with a 100 percent chance of acid rain. At least according to the more apocalyptic environmental activists who say that Bush administration policies have set the cause back decades.
Well, they are wrong. It's more like a century.
Then again, in 1906 the Forest Service had just been created and the nation's first prominent environmentalist was in the White House. And if old Teddy Roosevelt could see what the Bush administration is doing to his beloved wilderness now, he might be spinning in his grave fast enough to make a posthumous charge up San Juan Hill.
David Parsons worked for the Fish and Wildlife Service-the primary ESA enforcer-for 24 years before resigning in 1999 to open Parsons Biological Consulting in Albuquerque. Parsons served under four presidents-Carter, Reagan, Bush I and Clinton-but says the current administration has carved out its own inglorious niche on environmental issues.
"In my opinion, this is the worst administration ever for conservation, protection of endangered species and biological diversity," Parsons says.
During his tenure at the FWS, Parsons worked
as a field biologist and co-ordinator of the Mexican wolf recovery team, a program that has since been suspended under the Bush administration. He says the political climate in the FWS always shifts with each change in the Oval Office, but the collateral effects for the grunts on the ground has gradually increased over time.
"When I started, the biologists were free to do their work and to support their findings with the best available science," Parsons says. "The political trading off was done at very high levels. Over time, I've seen the politicization of the agency move down, first to the regional directors, then to state directors and now getting pretty close to the biologists themselves."
The trickle-down effect has had a severe impact on the enforcement of the ESA in New Mexico, according to environmentalists and current and former employees of the FWS, the Forest Service and the Bureau of Land Management.
Henry Gifford was an employee of the Forest Service for more than a decade before his contract as a wildlife research biologist was not renewed last November. The fact that Henry Gifford is not his actual name-he requested his real name not be used-underscores the fear and paranoia that many say permeates the country's environmental agencies.
The primary role of agencies like BLM and the Forest Service in enforcing the ESA is to monitor susceptible habitats and species and conduct official consultations, required by law, with FWS biologists to determine if activities such as logging are putting species and habitats in peril. Gifford says the consultation process in New Mexico has been relegated to a mere informality during the Bush presidency.
"I wouldn't say that the Forest Service has totally ignored consultations, but they are consultations that
get shaped in a way that it becomes ineffective," Gifford says. "Basically what happens is if those people that know the most about a particular issue
come out against the stance of those driving the process-which is primarily the department supervisors-they're shut out. They are not necessarily fired or transferred but they're just not invited to the next round of meetings."
Gifford says he raised the ire of management when he wrote an internal Forest Service memo alleging that Forest Service biologists were manipulating research in order to skirt court-ordered restrictions placed on logging and livestock grazing in the Lincoln National Forest, birthplace of the original Smokey the Bear.
At the time he wrote the memo, Gifford was in the middle of an extensive research study to determine how the effects of forest thinning and livestock grazing were affecting the habitat and prey of the Mexican spotted owl. Gifford says that Forest Service range conservationists were required by court order to monitor grazing pastures to ensure that a minimum grass height was being maintained to provide adequate prey cover for the spotted owl. While conducting experiments, Gifford discovered that his measurement samples vastly differed from those reported by agency conservationists.
"The results were
so
bad," Gifford says. "They were basically telling Fish and Wildlife that they were meeting the guideline when in fact they were not. They weren't even close, but it was the way they were measuring it and sampling it in a biased fashion that allowed them to say that. When they were called on that it raised a lot of feathers."
Gifford says forest thinning guidelines also have been interpreted liberally, to the benefit of the timber industry, under the guise of protecting communities from wildfire. He says the stretching of regulations is largely a result of political pressure exerted by local government and special interest groups emboldened by provisions within the Healthy Forests Initiative.
"Part of the Healthy Forests Initiative crafted by the
Bush administration was to give more power to local governments," Gifford says. "The Otero County commissioners have taken full advantage of that attitude and have put a lot of pressure on the Lincoln National Forest supervisor and, through Congress and to some degree Domenici, on both Fish and Wildlife and the Forest Service."
Gifford says the internal memo he wrote led to his experiment effectively being shuttered after it had consumed more than three years of his time and $1.5 million in taxpayer dollars. But not before the Forest Service arranged a consultation with the FWS regional director. The study was discussed and then axed.
The regional director at the time was Dale Hall, now national director of the Fish and Wildlife Service.
Ending the Mexican wolf recovery team was one of the hallmarks
of Hall's tenure as FWS regional director.
But the most controversial event was an agency memo he wrote in January 2005 supporting a new genetics policy. The policy stated that any genetic information not included in a species' initial listing couldn't be altered with subsequent science. That means if an animal was listed in 1984 as a single species and was later discovered to be a member of a wider subspecies or population of endangered animals, its initial ESA protections could not be extended to improve conservation efforts of those additional populations and subspecies. The policy also prohibited FWS biologists from issuing official determinations that an unlisted species was being jeopardized.
The policy earned Hall fiery criticism from the scientific community, including a June 2005 letter of condemnation endorsed by more than 160 scientists, biologists and university professors from across the country.
But while the policy infuriated many of the nation's top biologists, it apparently didn't hurt Hall's career prospects. Little more than a month after that letter was sent, Hall was nominated by the Bush administration to head the FWS.
Hall's critics also point to a February 2005
survey of FWS employees conducted by the Union of Concerned Scientists and Public Employees for Environmental Responsibility in which, during Hall's tenure, the Southwest had the lowest employee morale and the highest lack of confidence in leadership out of any region.
According to the survey, nearly 30 percent of
respondents reported being "directed to inappropriately exclude or alter technical information from a USFWS scientific document." In addition, 95 percent did not regard the FWS as effective in its efforts toward recovery
of listed species.
"That survey is quite compelling in showing that the folks in the trenches-the biologists with integrity within the FWS-have an uphill battle on a daily basis in trying to just do their job and enforce the law to protect these species on the brink of extinction," Rosmarino says.
But the battle over the Endangered Species Act isn't fought on
mesas or in forests. It's been fought in courtrooms since its birth. On this particular day, Jan. 24, US District Judge Bruce Black listens to arguments pitting the State of New Mexico and a coalition of conservation groups against the federal government and representatives of industry.
This bout of legal wrangling has prospective national implications, but the literal battleground is really a couple hundred miles south in and around Otero Mesa, a vast expanse in southern New Mexico.
The fight began soon after BLM announced in January 2005 an aggressive plan to allow oil and gas development
speculation on public lands in New Mexico. Following the direction of Gov. Bill Richardson, the state filed suit in April 2005, claiming the plan violated both the ESA and the National Environmental Policy Act. The case was subsequently consolidated with a similar action brought by a coalition of conservation groups that includes the NMWA, Forest Guardians and the Sierra Club.
At issue is a drilling lease sought by the
Harvey E Yates Company, a subsidiary of the Artesia, NM company Yates Petroleum Corporation, one of the nation's largest holders of oil and gas leases and one of the biggest individual donors to New Mexico Republicans.
The state argues that BLM put forth its plan without proper analysis, public input or consultation with state government. The defendants-led by DOJ attorney Andrew Smith-dismiss predictions of environmental catastrophe as "fantasy" and shrug off the fact that the BLM contradicted its own analysis in submitting the new leasing plan.
There is a slightly ironic twist of fate in the fact that the state's case has landed in the Pete Domenici Courthouse.
As chairman of the Senate's Energy and Natural Resources committee, Domenici [who did not respond to interview requests] has been at the forefront of the nation's push to increase energy production on American soil.
But while Domenici has given indications that he would be in favor of amending the ESA, his counterpart US Sen. Jeff Bingaman, D-NM, has been a long-time advocate for the law.
"The Endangered Species Act has been instrumental in helping protect many of our country's plant and animal wildlife, and their habitats," Bingaman says in an e-mailed statement. "There is a movement by the Republicans to seriously weaken the act and I believe the Senate will resist any extreme changes to it."
Yates Petroleum (and its subsidiaries) is the
largest holder of oil and gas leases in the western United States. It also happens that Yates Petroleum's desire to drill in Otero Mesa has been rebuffed largely by concerns centered around the Endangered Species Act.
Yates Petroleum and its subsidiaries also are significant benefactors for Domenici, who has received thousands in campaign donations from the Yates family.
Many of New Mexico's most endangered species (see sidebar, Page 19) are directly threatened by the push to drill the Land of Enchantment into a cribbage board. The primary ESA provision that keeps industry ambitions in check is critical habitat designations,
which provide the law's stingiest restrictions. Such areas also happen to routinely harbor the biggest fossil fuel honey pots.
Both the Pombo and Crapo bills would leave the designation of critical habitat up to the discretion of the Bush-appointed Department of the Interior.
"One of the criticisms of the ESA is that it's an emergency room statute," Horning says. "To some degree, that is true. It
is
a crisis to ensure that species don't go into the dark night of extinction. But critical habitat is the part of the statute that's not only about getting species out of the emergency room, but getting them out of the hospital altogether."
Howard Hutchinson agrees that critical habitat is important. But he says the way that critical habitat has been implemented under the current ESA-without proper consideration paid to social and economic impacts-is at the root of the problem.
"It's a very cynic-generating formula in our current system," Hutchinson says. "That's how phrases like 'Shoot, shovel and shut up' have come about. When you're creating a disincentive for harboring a species-whether it's listed or not-you're going to create that kind of an atmosphere."
The battle over the ESA traditionally has been a war of attrition,
but now the camps have circled their wagons.
The Forest Guardians headquarters is a command center in a combat zone. The offices and hallways are cluttered with bookcases filled with briefs, laws, legal filings, field reports, scientific research and national forest maps. These are the indispensable tools of desperate times.
"I think the current atmosphere has been demoralizing for a lot of people," Rosmarino admits. "But if anything it's made our focus clearer. Our work is more important than ever."
Despite the divide created by the Pombo/Crapo legislation and Bush administration policies, Hutchinson says its not too late to reach a compromise between the two sides.
But the contentious nature of the current
legislation and the enforcement of Bush administration policies has hardly been conducive to achieving a communal philosophy. Judge Black, citing more than 20,000 pages of records submitted in the Otero Mesa case, says he isn't likely to reach a decision until March at the earliest, well past the Feb. 15 deadline after which BLM issues its leases.
It's unlikely the divorced parties on both the state and national level will reconcile their differences any time soon. For now, compromise is a mere pipe dream.
"I think we should take a hard look at how the [ESA] has worked over the last 30 years and that requires a deliberative approach," Udall says. "I think we've lost our ability to deliberate. That means we need to reach out to
all
the stakeholders to get their points of view. I think [industry] should be consulted in this process. I think they have some good suggestions and I think if we handled this in a deliberative way we would be able to find some common ground with them."
For now, at least, common ground on the issue will likely remain the most endangered species of all.
Numerous threatened species in New Mexico are in danger of having their Endangered Species Act protections diminished. Here are a few of the high-profile animals, where they're found and the threats they face.
Aplomado falcon
Otero Mesa, considered by environmentalists to be a prime recovery area, is where the falcon is under threat by prospective oil and gas drilling as well as livestock grazing, military operations and pesticides.
Black-footed ferret
Virtually extinct from New Mexico, the black-footed ferret exists in only a few small, reintroduced populations in the West and is jeopardized by the dwindling prairie dog population, its primary food source.
Black-tailed prairie dog
Historically located throughout the Southwest and Great Plains states, the black-tailed prairie dog has dwindled in New Mexico, occupying only about 60,000 acres from several million a century ago. Limited populations can be found in eastern New Mexico. Like the Gunnison's prairie dog of northern New Mexico, the black-tailed prairie dog is threatened by agriculture, development, extermination and human plague.
Lesser prairie chicken
According to Forest Guardians, the lesser prairie chicken population has dwindled by more than 90 percent in the last century. It remains in southeastern New Mexico but is imperiled primarily by oil and gas drilling and livestock grazing.
Mexican spotted owl
Located in all 11 national forests in Arizona and New Mexico, the spotted owl is threatened by logging and agriculture.
Mexican wolf
Calling central New Mexico home, the wolf has seen its numbers dwindle through development and agriculture.
Rio Grande silvery minnow
The last of five native fish of its kind in the Rio Grande, the minnow is under assault from water consumption feeding agriculture and development.
Sand dune lizard
Found in western Texas and southeastern New Mexico when it's found at all, the lizard has been decimated by herbicides and oil and gas operations. According to Forest Guardians, the sand dune lizard may not be recoverable, even though it is still not listed under the ESA.
Santa Fe Reporter