May 2016 New Mexico Farm & Ranch

THE OFFICIAL PUBLICATION OF THE NEW MEXICO FARM AND LIVESTOCK BUREAU®

Pecos Valley Water Banking County FLB’s host ATV Safety Courses Farm Bureau Legal Defense Activities Page 1

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New Mexico Farm & Ranch

May 2016

NMF&LB President’s Column IDEAS AND ELBOW GREASE

BY MICHAEL S. WHITE

Benefits of Membership - Legal Representation What do you do, as a farmer or rancher, when someone infringes on your rights? Unfortunately, when worse comes to worse, and all other options have been exhausted, you take it to court. But what if your antagonist is the state or federal government? That seems complicated, intimidating and expensive.

Therein lays one of the values of your membership in New Mexico Farm and Livestock Bureau, the state’s largest agricultural organization. You don’t have to take on the big guys by yourself; your $60 annual dues help fund a litigation account that allows us to be stronger together.

Along with 12 other states, we participated in a successful lawsuit to halt the implementation of the new Waters of the U.S. (WOTUS) rule, promulgated by the Environmental Protection Agency. A district court judge in North Dakota found the EPA to be “arbitrary and capricious in its rulemaking,” so the law is stopped in these states until further litigation decides the issue. But New Mexico’s farm, ranch and dairy families are currently spared this overreach by the federal government. And WOTUS is now stopped for the rest of the nation due to the legal actions of the American Farm Bureau Federation which is funded by a portion of your dues.

“...we have the funds available to protect our state’s Ag community.”

And NMF&LB is quite successful at defending our members’ interests. For example, our winning outcomes in these following lawsuits are a few of the cases that have had a significant impact on our members.

At the request of NMF&LB, the New Mexico Supreme Court has agreed to review a lower court ruling that required workers comp insurance for farm and ranch laborers across the state. This would have been terribly expensive and the paper work very time consuming. Fortunately, the Ag community is spared from purchasing workers comp, for now, since the New Mexico Court of Appeals’ ruling is suspended until the Supreme Court can hear oral arguments and render a decision.

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Through the Pacific Legal Foundation, we petitioned the U.S. Fish and Wildlife Service to delist the Southwest Willow Fly Catcher. Rivers and grazing areas have been closed to provide habitat for this bird that is not a clearly distinct species. The Fish and Wildlife Service has said that there are substantial challenges to the bird’s scientific classification and that a review is merited.

Ongoing litigation includes that regarding the jaguar habitat. We’ve brought a lawsuit against the USFWS protesting their designation of 1,194 square miles of critical habitat in New Mexico’s bootheel and portions of Arizona. Our concern is that this designation affects significant grazing areas for an animal that lives primarContinued on page 9 May 2016

AFBF President’s Column BEYOND THE FENCEROWS

BY ZIPPY DUVALL

Visa Backlog Adding to Ag Labor Woes Thanks to the hard work and ingenuity of our nation’s farmers and ranchers, we enjoy an abundance of affordable, American-grown food. With summer nearly here, consumers are ready for their local grocery stores and markets to be fully stocked with their favorite fresh fruits and vegetables.

And U.S. agriculture is eager to keep up with the demand for American food products. But labor shortages and unreasonable visa delays challenge farmers’ ability to get their crops harvested and to market.

There’s no question that we need a long-term solution to protecting our borders while also securing a legal, reliable workforce for agriculture. The fix won’t be quick or easy, but it is possible. Farmers need a market-based visa program, managed by USDA, which gives both employers and workers flexibility for long- and short-term work.

lowing all the procedures and filing the proper paperwork, farmers are kept waiting 30 days or more for Labor Department approval. The law itself says approval time should be 10-15 days, but the government is far behind with no sign of catching up. It’s time for the agency to shape up and bring the system into the 21st century, before our agricultural labor situation worsens.

Unfortunately, ignoring the unique labor needs of agriculture seems to be business as usual for the Labor Department. That’s why Farm Bureau is calling on the Department of Agriculture to step in. We need USDA to ensure that farmers have the workforce we need to stay in business and continue to provide safe and affordable food. Farmers and ranchers need an agency that understands their labor needs managing this system.

“Farmers need a market-based visa program, managed by USDA...”

While it will take time to achieve the full reform we need, there are serious problems on the ground with our current system that can and must be addressed now. The current H2A and H2B system ignores the real-time needs of agriculture, and we’re seeing a prime example right now with massive visa paperwork delays at the Department of Labor.

Farmers across the country are already missing deadlines to have crews in place because of a bureaucratic hold-up with guest-worker visa applications. Even after carefully folPage 3

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Delays in worker visa approvals may sound like just a human resources headache, but these delays can be devastating for farmers. A crew showing up 30 to 40 days late just doesn’t work when crops need to be planted, tended and harvested. Crops don’t wait for stacks of bureaucratic paperwork to clear.

Yes, we need a long-term solution, including attention to border security, to fully solve agriculture’s labor problem.

But we also need a fix today for the needless delays that are keeping farmers from running their businesses.

May 2016

Valencia County Farm Bureau Makes ATV Safety No Accident Valerie Huerta, Regional Director It was a beautiful, crisp, clear morning. Perfect for riding, perfect for an ATV class. Valencia County President, Amy Shields, helped her daughter, Peyton strap on her helmet, goggles, and riding gloves. Prior to mounting the ATVs, we talked about the need for safety, safety gear, and properly sizing the machines to our age and body type. The class, which provides certification through NM Game and Fish upon successful completion, also discusses the use of ATVs for agricultural purposes, specifically noting that using an ATV to purposely harass livestock, livestock watering areas, and damage archeological sites is illegal.

In 2005, New Mexico passed legislation creating laws on the use of ATVs on public lands and established the Off Highway Vehicle Program. This was done primarily due to the number of people involved in ATV deaths and injuries. According to atvsafety.org, national statistics show that 35% of all ATV deaths include those under the age of 16, and, 50% of those injured are also under the age of 16.

Appropriate use of the ATVs and continued safe practices of them are the best ways to develop the necessary safety skills. Under the current law, the class and a certification are required to ride an ATV on public land. That is not why Valencia County Farm Bureau members took the class. Valencia County President Amy Shields stated, “Safety should be the top priority when riding an ATV. ATVs are large machines and improper use can result in getting seriously hurt.” The class discusses the need for and proper pre-ride inspection steps. Pre-ride inspection can minimize the chances of being injured or stranded and can take just five minutes of your time.

The ATV Safety course is just one added benefit of being a Farm Bureau member and provides tools and resources for a safe, successful, and enjoyable experience. Shown here left to right are Whelan Shields, Carlo Corbin, Amy Shields, and Peyton and Sonny Corbin. Photo courtesy of Valerie Huerta.

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New Mexico Farm & Ranch

May 2016

AFBF in the Courts A Review of Current Litigation

NEW CASES Clean Power Plan: Biogenic CO2 Coalition v. EPA (D.C.Cir.): AFBF joined with agricultural growers and processors challenging the Clean Power Plan regulations targeting greenhouse gas emissions generated from agricultural biomass/feedstock energy sources (technically known as “biogenic” sources of CO2).

Federal Lands: Otter v. Jewell (D.D.C.): AFBF joined with the Idaho Farm Bureau in filing an amicus brief supporting the state of Idaho’s legal challenge to federal land management plans that protect the sage grouse by restricting grazing operations on millions of acres of federal lands.

CASE UPDATES Chesapeake Bay Watershed “Blueprint”: AFBF v. EPA (S.Ct.): On February 29, the U.S. Supreme Court denied AFBF’s petition seeking review of EPA’s “blueprint” for the Chesapeake Bay (technically described by EPA as a “total maximum daily load”).

Review of Clean Water Act Jurisdictional Determinations: Hawkes v. U.S. Army Corps of Engineers (S.Ct.): AFBF filed an amicus brief on March 1, 2016, supporting landowners’ right to bring suit to challenge government assertions of Clean Water Act jurisdiction.

Waters of the U.S. Litigation: On February 29, 2016, AFBF filed a petition seeking rehearing by the full 6th Circuit after a three judge panel of that court decided that jurisdiction over the legal challenges to the “waters of the U.S.” rule lies in that court, and not the district courts.

AFBF v. EPA (S.Ct.) On February 29, the U.S. Supreme Court denied AFBF’s petition seeking review of EPA’s “blueprint” for the Chesapeake Bay (technically described by EPA as a “total maximum daily load”). No comment or explanation was provided by the Court and no further appeal is available. The Court’s decision comes shortly after the death of Justice Scalia, an unfortunate event that likely influenced the decision of the remaining Justices. With only 8 Justices on the Court until a 9th Justice is confirmed by the Senate, the Justices are less likely to grant petitions on cases likely to result in a 4-4 split of the Court. Although we are greatly disappointed, we know that AFBF’s advocacy and communications were of the highest caliber and will serve the organization well in future political and legal efforts on this important issue. In the years to come, AFBF will remain firm in opposing EPA’s unlawful use of its Clean Water Act authority to establish itself as a federal zoning board. We will closely monitor any EPA movement toward similar “blueprints” in other areas.

Given the importance of media and public attention in persuading the Court to grant review, AFBF’s legal, communications and public policy teams worked closely together to maximize attention to the case. The result was strong amicus support from 92 members of Congress, 22 states, local counties in the watershed, and key industry allies such as the U.S. Chamber of Commerce, the National Federation of Independent Business, Page 6

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and the National Association of Manufacturers. On the communications front, the effort generated op-eds, editorials and other print and digital press in key publications likely to be read by the Supreme Court’s Justices and clerks as the decision on the petition was made in late February. Well known leaders in agriculture, such as Missouri Farm Bureau President Blake Hurst, former Secretary of Agriculture John Block, and others, placed op-eds in major print and on-line publications, raising the profile of the case. Results of this effort included the following op-eds and opinion article placements outside of the agricultural trade press: • Multiple mentions in the influential “SCOTUS Blog” • “EPA Metastasizing into Zoning Board”, Opinion, Washington Examiner.com (Feb. 1, 2016):http:// www.washingtonexaminer.com/epa-metastasizing-into-national-zoning-board/article/2581740 • Blake Hurst, “EPA Goes After Low Income Farmers in Land Grab”, the Federalist, (Feb. 11, 2016):http://thefederalist.com/2016/02/11/epa-goes-after-low-income-farmers-in-land-grab/ • Henry I Miller, “Last Chance to Stop EPA’s Biggest, Worst Power Grab”, Opinion, Forbes.com (Feb. 10, 2016):http://www.forbes.com/sites/henrymiller/2016/02/10/last-chance-to-stop-epas-latest-biggest-worstpower-grab/#6a8b820b670e • Rupert Darwall, “EPA’s Lawless Land Grab” National Review Online, (Feb. 11, 2016): http://www. nationalreview.com/article/431134/epa-waters-us-rule • “Stopping a Land Grab”, Opinion, Washington Times.com (Feb. 24, 2016):http://www.washingtontimes.com/news/2016/feb/24/editorial-stopping-an-epa-land-grab/ Biogenic CO2 Coalition v. EPA (D.C.Cir.) AFBF joined with agricultural growers and processors challenging the Clean Power Plan regulations targeting greenhouse gas emissions (GHG) generated from agricultural biomass/feedstock energy sources (technically known as “biogenic” sources of CO2). The new regulations treat agricultural sources of fuel as the equivalent of fossil fuels, creating additional regulatory burdens on the biofuels and agricultural industry. The rules also tie the carbon neutrality of biogenic GHG emissions to unknown and undefined “sustainable” agricultural practices, which could be used for the indirect regulation of farm production practices (as opposed to on-farm emissions).

AFBF is participating in the case through its membership in the Biogenic CO2 Coalition. The Coalition requested and received an order severing this case from the larger legal challenge to the Clean Power Plan.

Meanwhile, the U.S. Supreme Court issued an order on February 9, 2016, staying implementation of the Clean Power Plan pending resolution of the legal challenges.

Defenders of Wildlife v. Jewell (N.D. Okla.)

On February 29, 2016, a federal district court in Texas denied the government’s request to amend that court’s decision vacating the listing of the Lesser Prairie Chicken (LPC) as a threatened species under the Endangered Species Act (ESA). Permian Basin Petroleum Ass’n, et al. v. Dep’t of the Interior (W.D. Tex.).

The government earlier asked for an amended judgment to ensure that the ESA’s protections remain in place pending the Fish & Wildlife Service’s (FWS) revisions to the vacated listing decision. The court ruled in September 2015 that the FWS did not provide a rational basis for the listing because it did not follow its own policies for evaluating conservation efforts when making listing decisions, rendering the entire listing arbitrary and capricious.

This is one of four separate lawsuits challenging the listing of the LPC. AFBF intervened in one of the listing challenges brought by the Defenders of Wildlife, now pending in the Northern District of Oklahoma. Defenders of Wildlife v. Jewell. A separate suit brought by oil interests is also pending in that court. Oklahoma Indep.

Petroleum Ass’n, et al. v. Dep’t of Interior. At the same time, a district court is reviewing two listing decisions Page 7

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as part of a larger challenge to the settlement agreements that led to the listing. Hutchison et al. v. Dep’t of the Interior and State of Oklahoma et al. v. Dep’t of the Interior (D.D.C).

Although this favorable Texas decision should result in the dismissal (on mootness grounds) of the lawsuits pending in other district courts, the government has already indicated that it will likely appeal. As a result, all pending district court litigation will probably be stayed until a final decision is reached.

Hawkes v. U.S. Army Corps of Engineers (S.Ct.) On March 1, 2016, AFBF and industry allies filed an amicus brief asking the U.S. Supreme Court to allow farmers and others nationwide who are affected by Clean Water Act jurisdictional determinations to immediately challenge those determinations in court. The Court will hear oral argument on March 30, 2016.

Otter v. Jewell (D.D.C) On March 8, 2016, AFBF joined with the Idaho Farm Bureau Federation, Idaho Cattle Association, National Cattlemen’s Beef Association (NCBA) and Public Lands Council in an amicus brief supporting the state of Idaho’s legal challenge to newly amended federal land management plans restricting human activities on Idaho rangelands. The Idaho plans are part of a broader strategy to exclude grazing and other human activities on 35 million acres of federal lands in several western states to protect the greater sage grouse and avoid listing the species under the Endangered Species Act. In doing so, the plans violate federal laws directing the federal government to manage public lands for multiple uses, including agriculture, instead of a single use – sage grouse protection – to the exclusion of all other uses. AFBF’s brief addressed several procedural and substantive flaws with the Idaho plan, including a mandate to mitigate harms to a “net conservation gain” standard to benefit the species.

Waters of the U.S. Litigation (S.D.Tex. and other federal district courts; 6th Cir.) Court of appeals litigation: On February 22, 2016, a three judge panel of the 6th Circuit decided that jurisdiction over the legal challenges to the rule lies in that court, and not the district courts. The three judges on the panel wrote three separate opinions, each with a different view of the law on this complex issue. Two judges concluded that the appellate court has jurisdiction over the legal challenges to the rule. However, one of those judges, Judge Griffin, reached that conclusion only because he felt bound by the prior decision of the 6th Circuit in National Cotton Council v. EPA, which in Judge Griffin’s view was wrongly decided. The third judge on the panel, Senior Judge Keith, disagreed that the National Cotton Council decision should be read so broadly, and so felt free to conclude that the appellate court lacks jurisdiction over these cases. Thus, of the three judges involved in the decision, two believe that the Clean Water Act does not give the appellate court jurisdiction to review the WOTUS rule.

It is in AFBF’s interest to ensure that litigation proceeds in the correct court before continuing with the time-consuming and costly process of litigating the merits of the rule. Given the uncertainty generated by this fractured decision by the panel, the AFBF coalition filed a petition on February 29, 2016, seeking a rehearing by the full 6th Circuit. Plaintiffs in the North Dakota case filed a petition and additional petitions are expected to be filed. AFBF also filed notice with the district court in Texas, to ward off a possible dismissal of that suit based on the 6th Circuit panel’s decision. In the meantime, until the jurisdictional issues are finally resolved, the nationwide stay of the WOTUS rule presumably will remain in effect.

District court litigation: Soon after the 6th Circuit’s decision, EPA asked the district court in North Dakota to dismiss the lawsuit pending before that court. In addition, the judge presiding over the lawsuits filed in the Northern District of Oklahoma dismissed those cases without a request from EPA. Meanwhile, a stay on litigation in the district court for the Southern District of Texas (where AFBF’s complaint is pending) expired, Page 8

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and the states of Texas, Louisiana and Mississippi on February 12, 2016, renewed their request for a preliminary injunction against the rule. The states’ efforts should enable the court to act quickly if the full 6th Circuit finds it lacks jurisdiction and the current nationwide temporary stay is lifted.

In the federal district court for the Southern District of Ohio, the judge denied separate motions to intervene filed by the Michigan Farm Bureau and both the Natural Resources Defense Council and National Wildlife Federation. The court reasoned that the interests of all these proposed intervenors were already represented by other parties and that amicus briefing would be a more appropriate way for them to participate.

Legal Representation Continued from page 2 ily in Mexico. According to our lawyers at the Pacific Legal Foundation “the state doesn’t even have any environmental features that are essential to jaguar recovery.”

The PLF is also representing us as we intervene in a lawsuit brought by the WildEarth Guardians against the Department of Justice. The WildEarth Guardians are claiming that the Endangered Species Act is being ignored as it applies to criminal punishment for the accidental destruction of endangered species. Currently, under what is known as the McKittrick Policy, innocent mistakes, such as not recognizing the species, not knowing it was listed or causing harm in an unintended way can’t be prosecuted. The WildEarth Guardians is suing to invalidate that DOJ interpretation and its effects would extend nationwide, to “takes” of any of the more than 1,500 species on the ESA list. We’ll let you know when that case is decided.

While we’ve won many lawsuits, we’ve unfortunately had some setbacks. Despite our challenge, the USFWS announced the meadow jumping mouse as an endangered species. More recently USFWS set aside 14,000 acres for the New Mexico Meadow Jumping Mouse despite our tireless efforts working through the process. This designation infringes on private property rights as 5,000 acres of private land were protected as critical habitat. That equals 190 linear miles of rivers and streams that will be off limits to cattle. That’s why we fought so hard to stop it. But the legal battles will continue for the property rights of our members.

When we say that we advocate for New Mexico’s farm, ranch and dairy families, we mean it! By virtue of member dues, we have the funds available to protect our state’s Ag community, and you’ve seen how effective we can be. So thank you for being a member and helping us to ensure a successful future for agriculture in New Mexico. This is just another benefit of your New Mexico Farm & Livestock Bureau membership.

Calling All NMF&LB Families!

We need your help! New Mexico Farm & Livestock Bureau will be celebrating 100 years starting in 2017. We are in need of both new and old NMF&LB photos and documents that represent our history. Do you have a photo of your family receiving the Farm Family of the Year award, or a copy of an Annual Meeting agenda? Perhaps you have a newspaper clipping of a summer meeting in your town, or a NMF&LB tie tack that your grandfather wore. We need a variety of things from a variety of years for publication in our Centennial book. To contribute, please send them to Dalene Hodnett, 2220 N. Telshor, Las Cruces, NM 88011, or scan them to daleneh@nmflb.org Thanks!

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Water Conservation in Pecos Valley Aron Balok, Superintendent, PVACD The Lower Pecos River has a rich history involving water. In a part of the state where there was limited irrigation, everything changed when an artesian aquifer was discovered in Chaves County. Since that discovery in 1890, the Pecos Valley has had to adapt to an ever changing and dynamic hydrology. The early residents of the Pecos Valley recognized the connection between the surface water (rivers) and the groundwater. It was out of necessity that the Pecos Valley Artesian Conservancy District (PVACD) was created in 1931. The Mission of the District was, and still is “to conserve the waters of the Roswell-Artesian Basin.”

Since its creation, the PVACD has played an active role in the management of the groundwater. From the adjudication and metering, to water banking and water right retirement, the District has sought to balance the aquifer’s withdrawals with its recharge. Through that process, irrigated farm land has been reduced from 144,600 acres in 1954, to approximately 110,000 acres in production today. The District has been active in the legal disputes that involve water appropriation, from the compact dispute with Texas, to the Settlement Agreement in 2003.

For three years the Lower Pecos Basin experienced a historic drought. In September of 2013, monsoonal floods provided relief from the drought that was unlike any seen in the valley before. The drought served to highlight the need for a water banking system to support the Settlement Agreement. Under the terms of the Settlement Agreement, “augmentation wells” were to be pumped to supplement the flow of the river, providing downstream users with water, but under such dry conditions the wells failed to produce all of the water needed. As a result, the Carlsbad Irrigation District called upon the State Engineer to administer the water rights according to their priority date. The state did not initiate the priority call, but had it been carried out, the results would have been devastating! The financial impact would have been in the neighbourhood of one billion dollars and the farmers in the Carlsbad Irrigation District would not have received additional water.

In 2014, the PVACD recognized that something had to be done to avoid the threat of a priority call, and embarked on a new effort to bring balance to the entire basin. The first step was an increase to the mill that is levied on the residents within the boundaries of the district (from 2 mills to 4 mills). The temporary two mill increase was set aside to fund a new kind of water bank.

While this new program is in its infancy, the district has already spent nearly $12,000,000 purchasing water rights in both the PVACD and the Carlsbad Irrigation District (CID).

What this program seeks to do is to bring balance to the entire system, and provide a tool to react to severe drought. As opposed to the typical “buy and dry” approach, this project will seek to ensure Pecos River Compact and Settlement Agreement compliance, while at the same time providing water to water right owners during times of drought.

In its simplest form it will accomplish two things during a drought; increase supply and reduce demand.

I believe that now is the time to take action, while we have plenty of water and not wait until the reservoirs are almost dry and the river has slowed to a trickle. With the right plan in place, we can be prepared for the next drought.

Photo courtesy of Aron Balok Page 10

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May 2016

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FARM T TODAY AGEN Farm Bureau Life Insurance Company 1 Surrender of the contract may be subject to surrender charges. Withdrawals before age 59 ½ may result in a 10% IRS penalty tax. Additionally, there is a charge for the Simple7 Income Rider once it is activated. Farm Bureau Life Insurance Company*/West Des Moines, IA. *Company provider of Farm Bureau Financial Services A144-NM (4-16)

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Non-profit Organization U.S. POSTAGE PAID Las Cruces, N.M. Permit No.2093

P.O. Box 20004 Las Cruces, NM 88004-9004

RETURN SERVICE REQUESTED

NEW MEXICO FARM & LIVESTOCK BUREAU Since 1917 . . . a Leader in New Mexico

ISSN 0028-6192 2220 N. TELSHOR BLVD. • LAS CRUCES, NM 88011 575.532.4700 • FAX: 575.532.4710 PUBLISHER: New Mexico Farm and Livestock Bureau New Mexico Farm & Ranch is published monthly. Yearly subscription is $24.00.

New Mexico Farm and Livestock Bureau members receive a complimentary subscription with yearly dues.

U.S. Postage PAID, bulk rate, PERMIT #31, Las Cruces, NM 88001. FORWARDING/RETURN POSTAGE GUARANTEED, ADDRESS CORRECTION REQUESTED. OFFICERS Michael White President, Dexter Craig Ogden 1st Vice President, Loving Larry Reagan 2nd Vice President, Ft. Sumner Chad Smith Chief Executive Officer Page 12

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New Mexico Farm & Ranch

BOARD OF DIRECTORS Bud Deerman, La Mesa Jim Ellett, Hope Duane Frost, Claunch Anita Hand, Datil Gary Hathorn, Flora Vista Leon Hemann, McDonald Jay Hill, Mesilla Park George Jackson, Lordsburg John Jackson, Lake Arthur Janet Jarratt, Los Lunas Deena Kinman, Elida Matt Lansford, Clovis Boe Lopez, Springer Danielle Lowry, Albuquerque Donald Martinez, El Rito Tommy Ortiz, Las Vegas Troy Sauble, Maxwell Paula Sichler, San Antonio John Sweetser, Deming Tom Wilton, Ft. Sumner

REGIONAL DIRECTORS Joel Alderete, Roswell Valerie Huerta, Santa Cruz Zach Riley, Albuquerque Benjie Segovia, Las Cruces Cheryl Butterfield Northern Director, Ag in the Classroom Traci Curry Southern Director, Ag in the Classroom Francisco Hatay Marketing Coordinator Dalene Hodnett Director of Communications and Media Relations Carmen Macias Comptroller Theresa Widner Director of Membership Services Anita Hand, Chair Women’s Leadership Committee Danielle Lowry, Chair Young Farmer & Rancher Committee May 2016