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Chalk One Up for Ranchers-Range Magazine

Ninth Circuit dings the WWP. Story and photos by Judy Boyle.

James Whittaker’s family has been working the land since 1915 when his grandfather purchased property and carved a ranch out of the wilderness.
James’ father, Floyd, ran a 20-mile trap line in the high mountains above the ranch during his late teens to earn money to buy additional land. Eachacquisition allowed them to improve the land for the next generation.

Sometimes, even the 9th Circuit Court of Appeals gets it right. The Court recently
handed Western Watersheds Project
(WWP) a major defeat in its relentless efforts
to remove livestock from public lands. The
decision provides protection for water rights
and ranchers across the West.

In the arid West, water is the essence of
survival for crops, pastures, wildlife, and livestock. Without vested water rights, most
ranches would disappear from the landscape
along with much of the wildlife that spends
the majority of its lives on private lands. This
is especially true in the high desert cow country of northcentral Idaho. Irrigated valley bottoms are sandwiched between Idaho’s Sawtooth Range and the Bitterroots of Montana. In Lemhi County, Idaho, mining towns like Junction, from which the current town of
Leadore evolved, were created in the 1870s. Ranches followed and many of the original
families remain on the land today as a vital part of the local economic and social structures. Neighbors watch out for each other. They still apply the Golden Rule and do deals
on a handshake. A man’s word can be taken to the bank.

Intruding into this picture are Jon Marvel and his “nonprofit” group, Western Watersheds Project (WWP). The group began in 1993 with the sole intent of running ranchers
out of business. Marvel has decided that livestock are harmful to public lands and
should not be a part of the western landscape. Bruce Babbitt’s
Rangeland Reform provided the perfect vehicle for Marvel to protest and appeal most BLM grazing decisions by becoming an “interested public.” With this status, Marvel’s group forced the BLM to giveit notice of any activities related to grazing. This included day-to-day management, allotment management plans, grazing-permit renewals, range-improvement proposals
for new fences and spring development,
predator control to benefit sage grouse, rangeland assessments and controlling juniper
invasions. Even the type of vegetation to plant
after a wildfire brings forth protests, appeals,
and lawsuits from Marvel.

In 2001, WWP began to go after the private water rights of ranchers. The reasoning
was twofold. If ranchers could not irrigate
fields on their private land, they would be
forced to buy hay for the winter and need
additional pasture, which could soon put
them out of business, thus eliminating their
cattle on the public lands. In addition, private
water rights are often used to water cattle on
grazing allotments. If the water source were
eliminated, ranchers would have to haul
water at increased expense in both fuel and
time. WWP believe the added expenses
would prove too great and ranchers would be
forced to give up their public-lands grazing
permits.

As WWP searched for water rights to use
as “test cases,” it discovered that numerous
ditches and canals carrying private water
crossed BLM-managed public lands. Instead
of using third-party lawsuits, as allowed
under the federal Endangered Species Act
(ESA), to sue individual ranchers one at a
time, WWP saw this as the opportunity to
put numerous western ranchers out of business with one lawsuit.

WWP reasoned that BLM had the
authority to permit or deny the use of ditches
crossing federal land. This authority would
trigger “consultation” with the U.S. Fish &
Wildlife Service (FWS) and/or National
Oceanic & Atmospheric Administration
(NOAA) to determine if the activity of conveying water created “jeopardy” for the listed
species. WWP knew they could not attack the
state-issued water rights of the ranchers.
However, if during consultation the agencies
determined the use of the ditches “harmed”
the listed species, it would be the hook needed to either reduce or eliminate entirely the
ability for a rancher to access his water.

BLM maintained it had no authority to
regulate ditches, which are vested rights-of way established prior to the Federal Land
Policy Management Act (FLPMA) of 1976.
A BLM memorandum of 1983 and BLM
regulations in 1986 further recognized pre-
FLPMA rights-of-way as valid existing
rights. BLM’s approval regarding the holder’s
activities is limited solely to “substantial
deviation in location or authorized use” of
the right-of-way.

26 • RANGE MAGAZINE • WINTER 2007

The Big Timber Creek water right and diversion, at issue in the lawsuit, was established in 1902 under the1866 Ditch Act. James has invested in three gravity-flow pivots to more efficiently water three hay fields whichalso provide forage for a large elk herd. When the water right runs out in July, James switches over to anatural spring capable of operating only one pivot at a time. At no time during the year is Big Timber Creekdewatered by the Whittaker diversion. In 2001, WWP filed a complaint against BLM for failure to consult with FWS under the ESA. WWP chose six water-right diversions including the Big Timber Creek water right of James and Paula Whittaker, who
ranch near Leadore, Idaho.

The Whittakers have been part of this
rural community since 1915 when James’
grandfather purchased the first ranch. James’
father, Floyd, ran a 20-mile trap line in the
high mountains above the ranch during his
late teens to earn money to buy additional
land. Floyd continued to buy ranches before
and after the Depression, a tradition which
James carries on. Each acquisition allows him
to improve the land, to strengthen the Two
Dot cattle herd and, most importantly, to
enhance the ability for the next generation of
Whittakers to remain ranching in the area.

Son Jordan and his wife Susan live on one
of the newer purchases several miles from the
ranch headquarters. Daughter Jill, her husband Boyd, and their son RJ Foster are on a
place just down the road from Paula and
James. Son Chase is a senior at Utah State.
Daughter April Jan Hawkes is an attorney and
small business owner with husband Brian in
Hamilton, Mont.

The Two Dot Ranch includes both private
land and numerous Forest Service (FS), BLM
and state grazing allotments. As James plainly
states, “Lemhi County is 92 percent public
lands which we must depend on for viable
ranching operations and a stable economy.”

This is typical across the arid West.

The ranch headquarters on the valley
floor sits at 6,300 feet elevation with the highest FS allotment around 10,000 feet. The
Whittakers comfortably share the land with a
wide variety of wildlife, providing excellent
habitat on both their private lands and public-
land grazing allotments.

James also carries on the family tradition
his father began by serving as a member of
the BLM Advisory Board which was authorized by the Taylor Grazing Act of 1934.
Floyd served from 1936 to 1976. James is
completing his 27th year on the board. He
also serves on the Leadore School District
Board.

Nevertheless, Idaho Federal Court Judge
Lynn Winmill ruled in March 2004 for
WWP. Winmill noted in his ruling that,
“under the Endangered Species Act, the BLM
is required to consult with the appropriate
fish and wildlife agencies when BLM action
may affect endangered or threatened species.”

He added that, “BLM has the discretion to
impose conditions on the operation of diversions.” Taking a page out of George Orwell’s
novel, “1984,” on government double-speak,
Judge Winmill concluded that “no action” is
the same as “action,” and by refusing to take
action by imposing conditions on the use of
the ditches, BLM engaged in agency action
thus subject to ESA consultation.

BLM appealed the ruling to the 9th Circuit. Joining BLM’s appeal was Pacific Legal
Foundation (PLF), which represented a host
of agricultural clients and the State of Idaho.

On July 24, 2006, the 9th Circuit panel
overturned Judge Winmill’s decision. The
Court found that because BLM did not
authorize, fund, or carry out the activity, there
is no duty for the agency to consult with FWS
or NOAA Fisheries. The 9th Circuit ruling
cited FLPMA, the 1983 BLM memorandum,
BLM 1986 regulations, and the 2005 BLM
amendments to their rights-of-way regulations, which again clarified that BLM regulations do not apply to existing rights-of-way
established prior to FLPMA.

Susan Giannettino, BLM Idaho deputy
state director for resources stated, “BLM is
pleased to have this decision from the 9th Circuit which addresses the question of BLM’s
authority over pre-1976 ditches. The Court
clearly found that BLM has no authority.”

Russell C. Brooks, managing attorney of
PLF’s Pacific Northwest Center, confirmed
the importance of the ruling. “As a result of
the 9th Circuit’s decision, water users who
hold these types of rights-of-way, not only in
Idaho but throughout the western states, can
continue to pursue their livelihoods without
the fear of their water being unlawfully taken
away.”

The Whittakers are hardworking family
ranchers whose ancestors faced the hardships
of carving a ranch out of the wilderness, had
the foresight to put water on the land, and for
over a century have provided Americans and
the world with a dependable, safe supply of
meat. Thanks to some uncommon common
sense from the 9th Circuit, the Whittakers
and ranchers throughout the West have won
an important battle in the war to carry on
their way of life. .

Judy Boyle lives on a ranch in Midvale, Idaho
where her grown children are the sixth generation
to raise cattle in the West. Judy was director of
natural resources for U.S. congresswoman Helen
Chenoweth Hage, served two terms as a substitute
senator in the Idaho Legislature, and has been a
lobbyist at the Idaho State Capitol.

WINTER 2007 • RANGE MAGAZINE • 27

THE TARGET UNDAUNTED-Range Magazine

Enviros use character assassination and slander to defeat property-rights champion Richard Pombo. By Judy Boyle

PHOTOS COURTESY POMBO FAMILY

Richard Pombo is a fourth-generation rancher from Tracy, Calif. When the federal ESA began threatening
family farms and ranches, Pombo started speaking out. After winning a seat in Congress and becoming
chairman of the House Resources Committee, his growing power started to worry environmentalists.
In 1993, a brash young freshman congressman—a fourth-generation rancher from
the West—debated the Sierra Club on
national TV regarding private property rights
and the Endangered Species Act (ESA).
Richard Pombo boldly took on the environmentalists. He didn’t waffle or apologize, just
stated facts and kept on the offensive.

During the 2006 election, Rep. Pombo,
chairman of the House Resources Committee, became the number one target of the
national environmental groups. They funded
a multimillion-dollar slanderous campaign
against him. The California legislature gerrymandered 40 percent of Pombo’s rural district
into the Bay area. Rural voters became com

placent. General anger at an unpopular war
and a Republican Congress, which appeared
to have lost its way, prevailed. All these factors
combined to uproot the lead proponent of
private property rights from Congress. Many
found his defeat inconceivable and asked,
bewildered, how it occurred. The answer
begins years ago.

Raised on his family’s ranch near Tracy,
Calif., Richard Pombo learned to care for the
land and for the livestock and wildlife which
share it. He knew wildlife inhabiting the land
proved good stewardship. When the federal
ESA began threatening family farms and
ranches, Pombo started a local property-
rights group and began speaking out.

In 1992, people urged him to run against
the democratic congressional incumbent, and
Pombo won. Once Republicans gained the
majority in 1994, Pombo chaired the ESA
task force and held hearings in the communities where people and property rights had
been abused, instead of requiring citizens to
travel to Washington, D.C., for two minutes
of testimony.

Richard organized “show me” tours for a
realistic view of how the ESA was applied. A
bill was drafted to grant real protection to
both endangered species and private property. House leadership told Pombo that the eastern congressmen would never allow the bill
to pass. Although that was true, instead of
giving up, the westerners began the daunting
task of educating both Congress and citizens.
Pombo even authored a book on private
property, “This Land is Our Land.”

In 1997, a levee broke near Marysville,
Calif., resulting in human death. Levee repair
had been delayed for years because levees
contained “habitat” for the endangered elderberry beetle. The U.S. Fish & Wildlife Service
demanded hundreds of acres be purchased,
planted with elderberry bushes, and maintained in perpetuity with a huge “environmental damages” payment before they would
authorize repairs. Pombo wrote a bill granting
emergency authority overriding the ESA
when human life is threatened. It was defeated on the House floor.

As chairman of the congressional western
caucus from 2001 to 2003, Pombo pressed for
science-based, commonsense environmental
policies. His growing power began to worry
the environmentalists. Carl Pope of the Sierra
Club bragged to Pombo: “I have raised a lot of
money because of you.”

Chairman Pombo held committee hearings in affected communities: Klamath Falls,
Ore., where irrigation water was taken to
“protect” fish; New Mexico, where the silvery
minnow threatens farmers’ and cities’ water
rights; Native villages in Alaska, where opening one percent of the Arctic National
Wildlife Refuge (ANWR) to oil drilling
means prosperity to the impoverished people;
and throughout the West, showcasing how
failed policies destroy wildlife, fisheries, and
entire watersheds with raging wildfires.

24 • RANGE MAGAZINE • SUMMER 2007

Always, Rep. Pombo worked towards
updating the antiquated ESA. Democratic
congressmen signed on to Pombo’s ESA
reform bill, which passed with a strong bipartisan vote. The national environmental
groups went ballistic.

Defenders of Wildlife, joined by the Sierra
Club, League of Conservation Voters, and
Humane Society, opened an office in Pombo’s
district 18 months before the general election.
Their sole mission was to defeat Pombo.
They called him a villain, claimed he was selling the national parks to miners, and accused
him of destroying all national environmental
laws. Pombo’s constituents became confused
with the outpouring of hate from these
national groups. The congressman chose to
ignore the attacks, focusing instead on congressional business.

Like many ranchers, Pombo believes slander should not be dignified with a response.
Instead, he authored the Energy Act of 2005,
promoting America’s energy independence;
led the fight to stop Communist China’s pur-million for medical and prosthetic research—
chase of a large American oil company; guid-a $13-million increase over the administraed the House-strong opposition to the U.S. tion’s request.
Supreme Court’s Kelo decision, which They accused Pombo of taking payoffs
expanded government’s emi

Richard with his family, from left: Rena, Ritchie, Rachael, Richard, and Annette. Pombo never backed
down from his strong defense of the U.S. Constitution and his belief that private property is sacred and
must be protected if America is to continue as a free society.
nent-domain power; and “Rep. Richard Pombo’s loss repre

became vice chairman of the
House Agricultural Commit-sents the most significant electoral

tee. Back home, Pombo assisted with improvements for victory the environmental movement

highways, the Stockton airport, has seen in decades,” said Rodger

and the inland port; helped
farmers find new markets for Schlickeisen, president of the Defend-

the Central Valley’s specialty ers of Wildlife Action Fund. “It should

crops; and stabilized irrigation
water rights. now be clear to all that we have the

The environmental mes

sage against Pombo didn’t sell, political strength to take on and
so the opposition turned to defeat extreme anti-environmental

character assassination. Never
known for ethics and truth as politicians, even powerful chairmen
they destroyed loggers, miners, of congressional committees.”ranchers, farmers and entire
rural communities, they used
the same strategy to personally attack the from disgraced D.C.-lobbyist Jack Abramoff.
congressman’s integrity. Yet again, not true. Pombo never accepted

They claimed he used taxpayer dollars for Abramoff ’s free trips, tickets, or meals and
a family vacation. Not true. What he had voted against Abramoff’s clients on numerous
done was investigate the National Park Ser-occasions.
vice’s constant claim of lack of money by rent-Citizens for Responsible Ethics (CREW)
ing a motor home and traveling throughout claimed Pombo as one of the “most corrupt
various parks. He personally paid all his fami-members of Congress.” (CREW, based in
ly’s expenses. Washington, D.C., is regarded by Republicans

They claimed he did not support veterans. and conservatives as a liberal activist organi-
Again, not true. Pombo voted for the veter-zation masquerading as a government watchans’ appropriation bill, which contained $412 dog group.) Newspapers in Pombo’s district

conducted in-depth investigations of the
“charges.” Each of the five district papers
found all the charges to be “distorted” and
“completely lacking evidence,” and gave
Pombo their endorsement for reelection.

Unfortunately for Rep. Pombo, the never-
ending slander and deceit proved effective.
He was defeated.

After the election, the Contra Costa Times
reported that the Sierra Club claimed 650,000
contacts with voters and thousands of Bay-
area liberals had walked precincts in Pombo’s
district to advance the slanderous campaign.
The Los Angeles Times reported: “Rep.
Richard Pombo’s loss represents the most significant electoral victory the environmental
movement has seen in decades,” said Rodger
Schlickeisen, president of the Defenders of
Wildlife Action Fund. “It should now be clear
to all that we have the political strength to
take on and defeat extreme anti-environmental politicians, even powerful chairmen of
congressional committees.”

Rep. Pombo never backed down from his
strong defense of the U.S. Constitution and
his belief that private property is sacred and
must be protected if America is to continue as
a free society. He deserves humble thanks for
standing tall in the exceedingly difficult battle
to protect our property, our country, and our
American way of life. He truly embodies the
western cowboy spirit and principles. Richard
Pombo is a damn good hand. .

Judy Boyle lives in Midvale, Idaho.

SUMMER 2007 • RANGE MAGAZINE • 25