Norteños Suing for Survival

Jarita Mesa/Alamosa Lawsuit Filed

Commentary by ERIC SHULTZ

Ethnocide is one term to describe the effect the Forest Service has on certain New Mexico people. And not just in the past. Ongoing actions by El Rito District Ranger Diana Trujillo are yet another blow to hispano culture, area residents allege in a federal lawsuit filed this past January. As previously reported by Kay Matthews in our parent publication La Jicarita News (April-May 2011 and Aug-Sept 2011), the conflict appears to stem from bad relations between Trujillo and the Jarita Mesa and Alamosa Livestock Grazing Associations. But history shows that however petty and personal this conflict may appear, it forms part of a long pattern that still has norteños fighting for their cultural survival.

What did Trujillo do? She exercised (the plaintiffs say abused) her authority and cut grazing by 18 percent on the Jarita Mesa and Alamosa allotments. Is this really that big a deal? Or, are the grazing permittees making a federal case (literally) out of a range management decision they simply don’t like? The answers to these questions go to the heart of the norteño predicament. This is a big deal, and here are some of the reasons why.

When I began this report with the word ethnocide, it was not just for rhetorical effect. Since exerting sovereignty over this region, the federal government has deliberately taken control of hispano community lands and eventually placed much of them under Forest Service administration (no longer just the battle cry of activists, this has been accepted by the government as a basic historical fact: see U.S. General Accounting Office, Treaty of Guadalupe Hidalgo: Findings and Possible Options Regarding Longstanding Community Land Grant Claims in New Mexico, 2004). While dispossessing New Mexico’s hispano communities of their land base was a first and deep injury to their agro-pastoral culture, subsequent policies and practices have continued to close off vital access to the forests. For a land-based culture, such denial of access is a death sentence, hence ethnocide.

By now it should be clear who the bad guys are in this story. But history has a wonderful way of reminding us that things are never that simple. By way of the civil rights upsurges of the 1960s, the Forest Service had its consciousness raised. Though far short of restoring community lands to their rightful owners, the agency did enact policies intended at least to mitigate that historical injustice. In 1967 the Chief of the Forest Service Edward Cliff directed the Southwest Regional Forester William Hurst to “consider Northern New Mexico as a special situation and to make a considered analysis of land use priorities [emphasis added].” It may seem funny how this directive was put into the language of federal land management policy, but the meaning was serious indeed: the 1972 “Region 3 Policy on Managing National Forest Land in Northern New Mexico” recognized Native American and Hispanic cultures as a resource. In the astonishing words of the 1972 Policy, these unique cultures are a “resource” in “much the same sense that Wilderness is considered a resource with Forest Service programs and plans made compatible with their future well-being and continuance [emphasis added].” The grazing lawsuit quotes the 1972 Policy where it states that “Forest Service objectives and policies must be altered to the extent possible to recognize and be responsive to [Native and Hispanic] culture and peoples [emphasis added].” Because this sentence is a statement of current policy, it has the force of law.

There is yet another historical circumstance constraining Forest Service actions in the El Rito district: the Jarita Mesa and Alamosa grazing allotments lie within a 73,000 acre tract called the Vallecitos Federal Sustained Yield Unit. Created by an act of Congress in 1948, the Unit was (and is) supposed to provide for the economic stability of its included and adjacent communities. In managing the Unit, however, the Forest Service has usually adopted a paternalistic attitude with predictably dismal results. For example, deciding that grazing was keeping the local population in poverty, managers undertook a policy aimed at creating jobs. This meant trying to phase out the locals’ agro-pastoral self-sufficiency by opening their Unit up to outside corporate logging operations from whom they were promised a few low-level jobs (link to an overview of the Unit’s history by La Jicarita editor David Correia). According to the permittees’ co-attorney Richard Rosenstock, just for the courts finally to find the Forest Service in violation of the Sustained Yield Forest Management Act of 1944 (which governs the Vallecitos unit), would be a positive outcome for this lawsuit.

As if the 1972 Policy and the Vallecitos Sustained Yield Unit were not adequate protections for hispano communities within the El Rito district, even the National Environmental Protection Act of 1969 (NEPA) requires government agencies to take a “hard look” at the impacts of their environmental management decisions. But according to the complaint, the “Forest Service’s discussion and analysis of social, economic, and environmental justice impacts in the 2010 Environmental Assessment for the Jarita Mesa and Alamosa Allotments is cursory at best and does not rise to the level of the hard look required under NEPA.”

Because the grazing allotments are located within the Vallecitos Sustained Yield Unit, which was set aside for the economic benefit of local communities; and because regional Forest Service policy requires that District actions “be responsive” to local hispanos and promote their cultural survival; and because NEPA requires a “hard look” at social and cultural impacts, does this mean that District Ranger Trujillo had no choice but to please the local grazing associations, even if this went against the best environmental science? The present lawsuit can offer nothing to answer this question, since in this case the best available science happens to support the permittees.

In 2009-2010, a Forest Service Interdisciplinary Team of environmental and wildlife scientists prepared an Environmental Assessment of grazing on the Jarita and Alamosa allotments. Following standard practice, the Team proposed three options: 1) end grazing; 2) apply management improvements while keeping the number of cattle about the same; and 3) apply management improvements while reducing cattle by 18 percent. The Interdisciplinary Team recommended Option 2. In those scientists’ opinion,  management improvements would result in increased grazing capacity, improved soils, improved riparian vegetation with less stream sedimentation, and better conditions for “sensitive species” with no negative impact on migratory birds but a possible improvement due to increased habitat and prey availability, all without requiring a reduction in livestock.

In reviewing the work of its own Interdisciplinary Team, the Forest Service sought and received a second opinion from the New Mexico State University Range Improvement Task Force (RITF). In the opinion of the University scientists, the Environmental Assessment (EA) was flawed. For instance, baseline data on range conditions involved vegetation measurements taken in high-traffic areas near attractions such as water and salt licks. In other words, according to the RITF, range conditions were actually better than what the Interdisciplinary Team had measured. While the RITF advocated replacing the May-through-October grazing season with a year-round regimen, in terms of the options presented by the EA, it also recommended Option 2.

On the same day that the Interdisciplinary Team released its Environmental Assessment, District Ranger Trujillo issued her decision adopting not Option 2 as her science advisors (and standard practice) recommended, but Option 3 with its 18 percent livestock reduction. After a close reading of Trujillo’s Decision Notice, I find that she merely claims to have “considered the best available science [emphasis added].” Nowhere does she claim that her decision was based on science, as NEPA requires. On what was her decision based, then?

According to the permittees’ complaint, District Ranger Trujillo’s injurious decision was based on retribution: by attacking their livelihoods Trujillo is getting even for the permittees’ numerous criticisms and complaints against her to their elected officials, as well as their petition for her transfer out of the district. Numerous statements and actions of record attest to Trujillo’s animus against the Jarita Mesa and Alamosa association members. Even so, their rights to criticize and to “petition government for redress of grievances” are enshrined in the First Amendment.

Regarding matters of law, the Jarita Mesa and Alamosa Livestock Grazing Associations’ lawsuit invokes laws and policies that narrowly address the unique history of Northern New Mexico’s hispano villagers. At the same time, it involves nothing less than those foundation stones of our democratic system, the right of free speech and the right to petition government for redress of grievances. Between these extremes there is the Administrative Procedure Act that governs the courts’ review of federal agency actions, and NEPA, our “basic national charter for protection of the environment.” From this observer’s perspective, the potential in this suit to establish progressive case law is considerable. As for matters of fact, besides the actions and circumstances reported in this brief review, two further examples will serve as illustrations.

One would naturally suppose that cattle in the National Forest are competing with wildlife for “fodder and forage.” In the case at hand, there are two main competitors, but each has a peculiar status as “wildlife.” One is a growing elk population, whose numbers are today controlled less by natural predation than by sport hunting. The other is a herd of feral horses which are not part of the area’s natural wildlife at all. Regarding horses, it is relevant to note that the Forest Service eliminated over 150 permits for the grazing of horses on Jarita Mesa in the 1950s. In the past 30 years, a herd of a dozen or so “wild” horses has grown to over 150 (estimates vary). According to the plaintiffs, the El Rito District has failed to follow its own 1982 policy decision to manage the number of horses. Logical conclusion: if horses are of benefit to the communities, the Forest Service will forbid them; if detrimental, they can run free and multiply.

The example involving elk is particularly damning. According to Forest Service records, the complaint alleges, “on January 27, 2010, Defendant Trujillo conducted a conference call with the Rocky Mountain Elk Foundation, a group dedicated to increasing elk populations for the benefit of hunters, and the Conservation Fund. Defendant Trujillo suggested that the groups attempt to get the Jarita Mesa and Alamosa Allotment permittees to sell their permits.” Raising livestock is an integral part of northern New Mexico hispano culture, as it has been for centuries. To end small-scale ranching by hispano families in New Mexico’s northern villages – by force or by chicanery – would end a traditional way of living. It would end a culture the Forest Service has enacted policy to protect. But despite the agency’s position in theory, District Ranger Trujillo’s conference call is yet another attempt at ethnocide in practice. A federal court can now decide whether Trujillo will continue her anti-grazing (thus in this context, anti-norteño) campaign, and whether the Forest Service’s progressive policy in defense of hispano culture will remain a dead letter.

La Jicarita will be following this case and reporting developments as they happen.

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