Legal History of the SPRNCA
To Conserve, Enhance and Protect...
The San Pedro Riparian National Conservation Area was established in 1988 through the Arizona- Idaho Conservation Act. It took two years to get the bill through Congress because prohibiting cows on public lands turned out to be politically impossible in the 1980s.
The SPRNCA’s founders wanted to explicitly prohibit grazing in the new preserve. They wanted to put a 15-year grazing moratorium in place to see how the land fared without cattle, but the Reagan administration and the National Cattlemen’s Association staunchly opposed this. They said it would set an “unfortunate and unnecessary precedent” on public lands managed by the Bureau of Land Management.
After failing to get a 15-year grazing moratorium passed in 1986 and 1987, in 1988 Jim Kolbe approached the legislation with a different strategy. He scrapped the explicit grazing moratorium and instead carefully drafted the legislation that would imply the exclusion of grazing in the area.
In the end, the SPRNCA’s enabling legislation read:
“The secretary shall manage the conservation area in a manner that conserves, protects and enhances the riparian area and the scientific, cultural, educational, and recreational resources of the conservation area. Such management shall be guided by this title, and where not inconsistent with this title, but the provisions of the Federal Land Policy and Management Act of 1976… and; The secretary shall only allow for such uses of the conservation area as he finds will further the primary purposes for which the conservation area is established.”
Unfortunately, most of the legislators who worked on the SPRNCA’s enabling legislation have passed away, but I was able to speak with Senator Dennis Deconicini and Dean Bibles, the Arizona State Director for the BLM who helped spearhead the creation of the preserve. Both agreed that the legislation had been carefully crafted to include an implied prohibition of grazing.
“Jim was very careful when he wrote this bill up,” said Bibles. “I know some people say oh, it was just a bunch of stuff that gets pulled off the shelf, but that’s just not the case.”
It was believed that the language which mandated that the BLM manage the conservation area in a manner that “conserves, protects and enhances the riparian area” made it clear that grazing would not be permissible. There is a significant amount of scientific research that demonstrates that cattle are damaging to fragile riparian ecosystems like the San Pedro. The SPRNCA’s founders believed that the BLM could not permit grazing without showing a blatant disregard for the science.
During the first couple of years of the SPRNCA’s life, under Dean Bible’s leadership, the BLM indicated that it was planning to remove grazing from the preserve. The private lease on the lands previously owned by Tenneco was allowed to expire and Bibles said that BLM had the same intention for the other four grazing leases brought into the SPRNCA after its creation.
But the mandate to “conserve, protect and enhance” left room for discretion and multiple interpretations of the language. Bibles left his position in Arizona in 1989, and under new leadership, the BLM chose to renew the four grazing leases in the SPRNCA. In response to protests over its reauthorization of grazing this year the BLM simply said the law does not prohibit grazing.
So how has what was believed to be an implied grazing moratorium allowed for grazing to continue over the past 30 years? The BLM has continued to allow grazing saying that it is not contrary to protecting riparian values.
Many environmental groups still believe that the mandate to “conserve, protect and enhance” prohibits the BLM from allowing grazing in the SPRNCA. The Center for Biological Diversity, Western Watersheds Project and the Sierra Club’s Grand Canyon Chapter are all suing the BLM based on this belief. They say that the BLM is breaking the law by allowing cattle to graze in the SPRNCA contrary to the science that shows they do nothing to conserve, protect or enhance the riparian area.
John Ladd, the Chairman of the Hereford Natural Resource Conservation District, reads the enabling legislation a little differently. He see the mandate to “conserve, protect and enhance” the area’s cultural values as mandating the BLM to protect ranching and agriculture in the SPRNCA. His belief is deeply rooted in his family’s long history of ranching in Cochise County. They’ve been running cattle in the area since before Arizona was officially a state.
Competing interpretations
“The statute says that the purpose is to preserve and promote riparian values,” Robin Silver, Co-founder of the Center for Biological Diversity. “Well, a cow does nothing except destroy riparian values, even if they try to contain them in a fence. It doesn’t work.”
“The way the law that formed the SPRNCA was established, it was the historical value of cattle and agriculture that was not going to be diminished when they formed the SPRNCA,” John Ladd, Chairman of the Hereford NRCD. “So having cattle in the SPRNCA is part of the law. And none of the groups against cattle acknowledge that. So if the BLM takes cattle out, they’re breaking the law.”
30 years of cows and politics on the San Pedro
Despite its mandate to “conserve, protect and enhance” the riparian area in the SPRNCA, the Bureau of Land Management has never fully removed grazing from the preserve. For the last thirty years, grazing has been continuously authorized on four separate grazing allotments, the Lucky Hills, the Bobacomari, the Brunckow Hill and the Three Brothers allotments. So how did this happen?
The BLM has never publicly given a reason for its continued authorization of grazing in the SPRNCA, but history and management documents from the agency give some hints as to why they chose to continue allowing grazing. Many local conservation advocates also feel that the BLM’s decision making is heavily influenced by local ranchers.
Before the BLM acquired the lands that make up the SPRNCA today, most of them were owned by Tenneco. Tenneco leased the land along the river out to local ranchers, and there were state grazing leases along the river as well. John Ladd has been ranching next to the SPRNCA for most of his life and said that in the early 80s before the BLM traded with Tenneco for the land, 3500 cows were on the river.
After the SPRNCA was officially established in 1988, the BLM had to make a plan for how to manage its new conservation area. But this got slightly complicated because they had traded for most of the land with Tenneco in 1986, but added more land to the SPRNCA in 1988 through a second trade with the State of Arizona. The resulted in two separate management plans for the SPRNCA with different ideas on how to handle grazing. The land that the BLM had traded with Tenneco for was managed under the San Pedro River Riparian Management Plan of 1989. The plan put a 15-year grazing moratorium in place, after which the possibility of grazing would be reconsidered. It did not outright reject the possibility of grazing in the SPRNCA. Instead, it said “BLM does not regard livestock grazing to be incompatible with the continued existence of the riparian ecosystem.”
Management for the former state lands that became part of the SPRNCA was addressed as part of the BLM’s 1992 Safford District Resource Management Plan. It said that the current leases had to be honored by the BLM because of the MOU signed by Governor Babbitt and Dean Bibles in 1985 which stated that grazing rights would not be affected by any land exchanged between the state and the BLM. The 1992 RMP said that livestock grazing in the SPRNCA would only be permitted on the four former state grazing allotments and that the leases would be retired at the end of their 10-year terms.
This was the last time the BLM publicly addressed the issue of grazing in the SPRNCA until the 2018 draft RMP was released for public commenting. But we now know that by 1996, all four former state grazing leases had been reauthorized for another 10 years. The BLM had not followed its plan to retire them at the end of their previous leases.
For the thirty years that passed between the passage of the 1989 San Pedro River Riparian Management Plan and the most recent 2019 Resource Management Plan for the SPRNCA, the grazing leases on the four allotments within the preserve continued to be renewed every ten years. The BLM never offered an explanation for its sudden change of plans for grazing within the SPRNCA.
Jeff Burgess has been advocating against grazing on public lands in Arizona since 1982. He said that he was completely stonewalled by the BLM whenever he asked for information on these grazing allotments until they released their draft RMP in 2018. He thinks that one of the main reasons the BLM did not communicate with the public about grazing in the SPRNCA was that they knew they were legally vulnerable and did not want the issue raised.
Burgess thinks that the local BLM is “enslaved by local politics.” And he’s not alone in this belief. Many of the environmental advocates fighting to remove cows from the SPRNCA believe the BLM’s management decisions are based on undue influence from the local ranching community.
During the early 1980s, Arizona Governor, Bruce Babbitt, was concerned about the future of sensitive wildlife habitat on state trust lands. All state trust lands were legally required to be used for revenue generation for the state. This presented a conflict of interests when it came to habitat prservation. So Gov. Babbitt teamed up with the BLM Director for Arizona, Dean Bibles, to begin trading sensitive wildlife habitats with the BLM. But there was one small problem with this plan. Ranchers could protest the land exchanges if their grazing rights were going to be impacted and almost all of the state trust lands were being leased out for grazing. It was part of the revenue generation scheme on state trust lands. So, in 1985 Gov. Babbitt and Bibles signed a Memorandum of Understanding that said: "the exchange should not interfere with ranching operations" followed by; "unless the land is to be dedicated to a purpose that would preclude grazing," and that the purpose of the proposed exchange was to "protect wilderness, wildlife habitat, recreation and other public values."
“It all goes back to that thing called the NRCD which basically runs everything,” said Silver. “The BLM does nothing without getting the approval of the local ranchers.”
Silver is not sparing in his criticism of the local BLM administrators. He thinks they defer to the local ranchers because they want to be ranchers themselves.
“So the confusion is in the brains of the BLM administrators who basically want to be ranchers themselves,” said Silver. “And they think that their job is to promote ranching instead of doing their job as federal employees. That’s the bottom line problem we have here.”
From the perspective of the anti-grazing advocates like Silver and Burgess, the accusation that the BLM is being controlled by local ranching interests makes sense. The legislative history behind the SPRNCA’s enabling legislation and the extensive scientific evidence showing that grazing has a negative impact on the San Pedro’s ecosystem make it hard to understand why the BLM has continued to authorize grazing in the area.
The local ranching community thinks that the accusation that they’re somehow controlling the BLM’s management decisions is ridiculous. They’ve said that they must be doing something wrong if the minimal help they receive from the BLM is all they can get by influencing them.
Scott Feldhausen, the current Gila District Director for the BLM, is popular with local ranchers. They say that he’s the first BLM administrator they’ve worked with in decades who treats them fairly and they’re concerned that he will retire soon and be replaced by a more typical “environmentalist” BLM employee.
Despite the accusations that the Hereford NRCD controls all of the BLM’s local decisions, John Ladd, the Chairman of the NRCD, said that they hadn’t worked with the BLM at all until Scott Feldhausen got there a few years ago. This may explain why the BLM renewed the allotments in the 2019 RMP under Feldhausen’s leadership, but it doesn’t explain the three decades of grazing authorization before that. If we take Ladd at his work, the BLM was not working with the NRDC or local ranchers during those years.
The Wrong Law?
Dean Bibles offered a different explanation for why the BLM has continued to allow grazing in the SPRNCA for the last thirty years. He believes that the BLM is managing the SPRNCA through the multiple use principles outlined in the Federal Land Policy and Management Act of 1976 rather than the special use principles laid out in the SPRNCA’s enabling legislation.
“My contention is that there are too many people who believe that the Federal Land Policy and Management Act of 1976 somehow overrides [the SPRNCA’s enabling legislation] and that they’re required to put grazing in,” said Bibles. “But the fact is that the Congress passed a specific piece of legislation that said you can use FLPMA as long as it doesn’t interfere with the purposes outlined in this very specific piece of legislation.”
Burgess and Silver both agreed that the BLM’s actions made it seem as if they were applying multiple use rather than special use principles in their management decisions for the SPRNCA. Burgess said that he remembers Feldhausen saying that he was using multiple use to guide his management decisions for the SPRNCA during a public meeting in 2018.
“This is not about multiple use and having to give them access to it,” said Silver. “No, this area is not for multiple use, this area is for riparian protection. They’ve got millions of other acres for cows. This is not it. But in their little BLM brains, they can’t differentiate.”
So what is FLPMA and why would managing the SPRNCA using the principle of multiple use make the BLM feel like they have to continue to authorize grazing?
The Federal Land Management and Policy Act of 1976 is often referred to as the BLM’s organic act. It provides the agency with instructions for how to manage the roughly 12 million acres of public lands under its control. It tells the agency that it must manage these public lands in a way that will prevent “unnecessary and undue degradation” and that each of those 12 million acres must be managed through either multiple use or special use.
The SPRNCA’s enabling legislation is a good example of a special use mandate for an area that has been deemed to need a higher level of protection. But most of the public lands managed by the BLM are governed through multiple use. The definition of multiple use instructs the BLM to manage the land in a way that “will best suit the present and future needs of the American people.”
The public lands managed by the BLM are not just pristine areas of nature for the public to enjoy. They are also a source of resources for our nation and multiple use instructs the BLM to balance the conservation of these lands with their extractive values. Because of this, the BLM has earned itself the nickname, Bureau of Livestock and Mining, because those are some of the primary activities that take place on the lands under the BLM’s control. Multiple use does not mandate the BLM to permit grazing on public lands, but grazing is one of the most pervasive land uses the BLM has to balance through multiple use.
National Politics and the Sagebrush Rebellion
The passage of FLPMA in 1976 made it official that the era of homesteading in the American West was over. FLPMA clearly stated that all lands owned by the federal government as part of the public trust would remain under federal ownership. Many rural land users in the West and Western lawmakers were upset by this declaration of permanent federal ownership.
Both federal and state lawmakers like Orin Hatch began pushing legislation that would turn over ownership of all federal lands to the states. Ranchers across the West protested against federal land management agencies, sometimes violently. In 1995, the October cover of TIME Magazine featured a group of ranchers who had bulldozed a Forest Service road in Nye County Nevada. This was just one year before the BLM renewed all four grazing leases in the SPRNCA after the 1992 Safford District RMP said they’d be retired at the end of their terms.
The federal government did not hand over the lands in the public trust to the states. But the Sagebrush rebellion was a turning point for the federal government’s management of the public lands. During his 1981 presidential campaign, Ronald Reagan declared himself a sagebrush rebel and promised a more hands off approach to the federal management of public lands.
Many of the environmental advocates seeking to remove cows from the SPRNCA today, think that the fervor of the Sagebrush Rebellion and this new hands off approach to the management of public lands were contributors to the BLM’s original authorization of grazing in the SPRNCA and its continued mismanagement of the area.
Both Burgess, and Silver pointed to national politics to explain the BLM’s reauthorization of grazing in the SPRNCA in the 1990s. They pointed out political changes in both the Clinton and Bush Jr. administrations that created a top-down push for a more hands off approach to the management of public lands which involved less enforcement of land-use regulations and reduced staffs and budgets for land management agencies.
Silver claims that the management of public lands really started to decline in the 1990s under the Clinton administration.
“It was during Clinton that things started to go to hell,” said Silver. “Bruce Babbitt was the Secretary of the Interior and Clinton appointed Jamie Clark to head the Fish and Wildlife Service. And neither of them had the wherewithal to enforce the law. Nothing got done at that point without litigation… And then it just started getting worse and worse under Bush.”
Burgess said that this was largely perpetuated by grazing lobbyists who argued that ranchers were the best conservationists. He said that they helped reduce the agencies’ staff and budgets by saying that the ranchers were the best caretakers of the land and didn’t need agency people looking over their shoulders.
This argument that ranchers are the best conservationists is something I heard from many ranchers while working on this story. It was something they brought up as a defense of grazing in the SPRNCA.
“Ranchers really were environmentalists way before the environmentalists made a big deal,” said Steve Boice, a supervisor for the Hereford NRCD. “Because if that rancher over there gets overgrazed, or dredged to nothing, he doesn’t make a living. No, you gotta take care of your lands.”