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Our Views

Our Views Columns

Date: 1/17/2013

Title: NCBA/PLC Battle in Court to Represent Cattlemen

By Ashley McDonald, NCBA Deputy Environmental Counsel, and Dustin Van Liew, NCBA Director of Federal Lands and PLC Executive Director

Litigation is considered a dirty word in today’s world, but unfortunately for the cattle industry it has become a necessary evil. Turning to legal action is a last resort when federal agencies do not listen to or work with our industry and instead promulgate disastrous regulations that could cripple cattle operations. Petitions, interventions and other forms of legal participation by the National Cattlemen’s Beef Association (NCBA) and the Public Lands Council (PLC) have been on the rise as the number of dangerous federal actions has increased.

Earlier this week, the U.S. Supreme Court heard oral arguments in Koontz v. St. John’s River Water Management District (District), a Fifth Amendment case in which NCBA and PLC filed an amicus curiae “friend of the court” brief. The District denied Coy Koontz, a Florida landowner, a land use permit because he refused to accept the agency’s unreasonable mitigation terms. In exchange for issuance of the permit, Koontz would have had to dedicate 11 acres for conservation and pay up to $150,000 for improvements on property owned by the District. Koontz sued the District, claiming that the agency cannot force him to perform mitigation on property he did not own and which was located miles away from his land.

The case escalated from being heard at the Florida Supreme Court, where the state sided with the District, to the U.S. Supreme Court, which may overturn the decision. During the oral arguments this week, some of the justices seemed reluctant to find a “taking” of and encroachment upon private property rights, while others felt there was clearly a need to find a potential violation of those rights. A ruling in the District’s favor would allow government entities to require outlandish and disconnected conditions on a permit application. A ruling that finds Koontz is owed compensation will benefit livestock producers. For example, In issuing a land use permit an agency would now be more limited in the conditions it could impose on permit applicants. The Supreme Court’s decision should be made by June.

Though we hope for a victory in the Koontz case, a disappointing decision came out of the D.C. Circuit Court this month in National Resources Defense Council (NRDC) v. EPA. In this case, the court held that EPA must regulate precursors of fine particulate matter (PM2.5). In a 2007 rule, EPA notified states that they did not have to regulate ammonia as a precursor to PM2.5 unless the state found it was a significant contributor to its PM2.5 nonattainment. Environmental extremists challenged this provision. The ruling means that EPA could start requiring states that have a PM2.5 nonattainment area to start regulating sources of ammonia. The extent to which this ruling will affect the cattle industry is still unknown considering the fugitive — open air as opposed to coming out of a smokestack — nature of ammonia emissions. If fugitive ammonia emissions are included cattle operations located in PM2.5 nonattainment areas could start to see regulations applied as soon as the 2014 PM2.5 Implementation Rule takes effect. 

NCBA and PLC recently filed an amicus in another Supreme Court case, this one challenging environmentalists’ claim that Clean Water Act pollution permits need to be issued by EPA on logging roads. These roads, many of which enable ranchers to access their grazing allotments, have not traditionally been and should not be subject to permitting. Oral arguments in the case were heard last month, and new briefs are due Jan. 22.

NCBA and PLC have also joined a petition to the Supreme Court to overturn a National Environmental Policy Act (NEPA) decision of the Ninth Circuit Court of Appeals. We agree with the U.S. Solicitor General — a strong ally to have in a Supreme Court case — that the appeals court wrongly gave standing to environmental groups who could show no harm, and that the court was wrong to rule against the agency’s use of programmatic NEPA. The radical groups argued that the 2004 Sierra Framework, a broad planning document guiding management decisions, including grazing, in northern California was not detailed enough. That’s exactly the point; the framework document is a guide, not a detailed analysis, and it should stand as is. Because the Solicitor General has also requested the case to be heard, we are optimistic that it will make it onto the high court’s docket.

In August 2012, NCBA and PLC filed suit against the U.S. Forest Service (USFS) and its year-old planning rule, which NCBA and PLC are litigating on grounds that it violates the agency’s multiple-use mandate and the Administrative Procedures Act. The new rule focuses almost entirely on “preservation, species viability and spiritual values,” rather than on the balance of multiple-uses such as livestock grazing, timber management and recreation, all of which contribute to healthy national forests. This case will move through the D.C. District Court over the coming year.

Although many of these cases are complex and unwieldy, their outcomes are of great importance to our producers. At a time when the political landscape is rather inhospitable for farmers and ranchers, and gridlock reduces the chance for legislative victories, the courts may, in fact, be our most promising avenue for progress.