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Policy

Casper – “We are living during an incredibly challenging time,” said William Perry Pendley, president and chief legal office of Mountain States Legal Foundation, during the Opening General Session of the 2014 Wyoming Stock Growers Association Winter Roundup on Dec. 2. 

Pendley added, “I think this country is in trouble, and we have great challenges ahead.”
During his presentation, Pendley looked at several of the challenges impacting Americans and landowners and his work through Mountain States Legal Foundation to curb today’s overbearing government. 

State of affairs

“We are living during the time of the most lawless administration in the history of the republic,” Pendley noted.

Senator Ted Cruz (R-Texas) has identified 76 instances of violations of constitutional mandates by President Obama, according to Pendley, who added, “I’ll cite Jonathan Adler, a liberal professor of law. He says he agrees with Obama’s policies, but doesn’t like the way he is doing it.”

“We are, today in America, at a constitutional tipping point,” Pendley continued. “One of the three branches of government has grown more powerful than the other two.”

In particular, Pendley cited three laws that are affecting landowners across the West that reflect the growth of power of the government.

Endangered species

“Environmental groups describe the Endangered Species Act (ESA) as the pit bull of environmental laws,” says Pendley. “Unlike almost every other statute on the books, the policy is implemented regardless of economic impact.”

When the law first passed in 1976, the bill passed unanimously.  

“Senator Cliff Hanson of Wyoming voted for it because they were told only about 100 species would be on the list, and species would only be on federal land,” he continued. “If species were on private property, there would be just compensation. I know of no instance in which just compensation has been paid.”

Species coast-to-coast are impacted, but Pendley noted that listing petitions are often attempts by environmental groups to drive multiple use off public lands. 

“ A lot of people believe the ESA is based in science,” he said. “It is not about biology. Science is supposed to be about reproducible findings. That is what science is all about. Instead the agencies have models that they use.”

As an example, Pendley noted that the polar bear was listed as endangered because models showed that polar ice caps would melt in the next century, causing the polar bears to die. 

The practice, he said, is flawed, and needs to be fixed. 

NEPA

The National Environmental Policy Act (NEPA) is another problematic act, according to Pendley.

“NEPA is the workshop equivalent of measure twice cut once,” he described. “It was supposed to be for the federal government to make informed decisions and move on.”

“Today, NEPA is one of the most effective tools for bureaucrats and groups to stop everything in its tracks,” Pendley continued.

He noted that environmental groups are now trying to impose NEPA on actions that occur on private property, describing a lawsuit in northwest Pennsylvania in 2009. 

“One of our first victories over the Obama Administration was in 2009 when a lawsuit was settled over attempts to apply NEPA to private oil and gas operators,” he said.

“We have slow walking, endless talking and eternal blocking in federal agencies,” Pendley added, mentioning that NEPA further slows the pace of business.

Clean waters

Rounding out his list of top-priority federal policies, Pendley cited the Clean Water Act (CWA). 

“The Clean Water Act was a relatively slender statute passed in 1972,” he said. “Senator Edmund Muskie from Maine proposed the 88-page piece of legislation.”

The five most important words in the Act – waters of the U.S. – have been a source of controversy, he added. 

“It was an attempt by Congress to define its jurisdictional limits,” Pendley continued. 

The definition was originally proposed to have commerce implications, and Pendley explained that navigable waters were those that are important for commerce. 

“Over time, the Supreme Court has ruled on how far the federal government can go,” he said, also mentioning that they have taken the stance of, “I can’t define it, but I know it when I see it.”

The stance is problematic and makes any decision-making for landowners very difficult. 

Taking action

As these three Acts create problems for many across the U.S., Pendley noted that he has fought in court in many situations to find justice for those impacted, representing ranchers, landowners and others. 

The challenges that Americans are facing currently, he said, aren’t going to go away, and they must be dealt with to maintain property rights. 

“I’m reminded of the song, ‘The Living Years,’ by Mike and the Mechanics,” Pendley added. “‘Every generation blames the one before and all of the frustrations come pounding on their door.’”

“As we face these challenges on the ESA, NEPA, the Clean Water Act or whatever it may be, remember that there will be troubles, but it will be worth it,” he continued. “I say, fight on, always aware of the fact that if not, you, then who? If not now, then when?”

Saige Albert is managing editor of the Wyoming Livestock Roundup and can be reached at This email address is being protected from spambots. You need JavaScript enabled to view it..

Editor’s note: On June 1 the U.S. Cattlemen’s Association (USCA) issued the following comment and background information regarding media reports of a preliminary WTO ruling on the U.S. country of origin labeling rules as required by the 2002 Farm Bill and as amended by the 2008 Farm Bill.
Last week the Daily Report for Executives reported that the World Trade Organization’s (WTO) dispute resolution panel in the Canadian and Mexican challenge of the U.S. country of origin labeling (COOL) law has issued a preliminary ruling in favor of Canada and Mexico. The Daily Report for Executives story surrounds a confidential report circulated only to the parties involved, but which was apparently leaked immediately to the media.  
The three-member dispute panel reportedly found that U.S. COOL requirements do not fulfill the objective of helping inform consumers of the origin of meat, act as a protectionist barrier and, as a result, violate the WTO agreement on Technical Barriers to Trade (TBT). The WTO dispute three-member panel that is hearing the case consists of a Swiss diplomat; Pakistan’s ambassador to the WTO; and a WTO staffer-turned-trade consultant from Portugal.  
Not satisfied with the outcome of two sets of consultations held with U.S. officials about their concerns, both Canada and Mexico requested the establishment of a WTO dispute resolution panel in November 2009 to consider their case. Both the Canadian and Mexican governments asserted before the WTO that COOL is inconsistent with several WTO-related trade commitments, including those providing that imports must be treated no less favorably than products of domestic origin, among other things. U.S. officials argued that the U.S. implementation of COOL provides consumers with information that is consistent with WTO commitments, noting that countries had agreed that COOL was legitimate policy long before the WTO was created, and that other countries also require goods to be labeled with their origin.  
The U.S. Trade Representative’s (USTR) call for public comment on this case generated several responses from the livestock sector. USCA, Women Involved in Farm Economics (WIFE) and the National Farmers Union (NFU) argued in joint comments submitted to the USTR that COOL is fully consistent with the General Agreement on Tariffs and Trade and the Agreement on Technical Barriers of Trade (key WTO commitments).
The groups stated that the U.S. law “does not discriminate between domestic and imported beef... operates neutrally in the market place... and does not impose any domestic content requirements (i.e., does not stipulate what share of value or quantity determines country of origin).”
“Media reports about this ruling are apparently based on a confidential document that was circulated only to the parties involved in the case, the details of which remain uncertain at this time. USCA is a staunch supporter of COOL and has worked hard for years with other industry and consumer groups to see the law passed and implemented and we will continue to work with federal officials involved in defending COOL through this international challenge,” says USCA President Jon Wooster of San Lucas, Calif.
“USCA firmly believes that COOL fulfills the objective of informing consumers and that it meets all international trade law criteria. It is likely that the dispute panel’s final ruling will be made public through appropriate channels this summer, after which the U.S. will have 60 days to file an appeal, if necessary,” explains Wooster. “If this case proceeds to that level, USCA will do everything in its power to support the appeal process. In the meantime, we will await the public release of the WTO’s final decision in order to move forward based on facts rather than unsubstantiated media reports.”

Washington, D.C. – Wyoming’s congressional delegation has prepared for a busy year, saying they will continue to work toward accomplishing goals that would benefit Wyoming’s agriculture communities.
    Senator John Barrasso says, “One of the biggest obstacles facing our farming and ranching communities are the rules and regulations coming out of Washington.
    “Wyoming’s ranchers should be focused on running their operations – not dealing with this administration’s bureaucratic red tape.”
EAJA reforms
    Both Barrasso and Representative Cynthia Lummis define the Government Litigation Saving Act (S 1061/HR 1996) as one of the big issues that will remain a priority this year. The bill would serve to severely limit abuse of the Equal Access to Justice Act (EAJA) by environmental litigation groups.
    HR 1996 passed the House Judiciary Committee in October, and Lummis believes that, by altering the bill to make EAJA work better for veterans and social security recipients, additional support will be gained.
    Lummis will continue working in 2012 to achieve bipartisan support for the bill. Barrasso also supports the reform of EAJA and introduced a companion bill in the Senate.
     “For far too long, special interest groups have funded their anti-multiple use agenda with Americans’ hard earned taxpayer dollars,” says Barrasso. “Our bill halts the endless cycle of reckless lawsuits and fixes this broken system.”
Farm Bill
    The Farm Bill, last authorized in 2008, will be up for review by the agriculture committees in 2012.
    Lummis explains that the Senate and House agriculture leaders submitted a proposal that included cuts of $23 billion in the next decade to the super committee, and, since the super committee did not produce a plan, the Agriculture Committee plans to build on their proposal for reauthorization.
    Many of the cuts would affect mandatory programs spending levels in the next five years, according to Lummis.
    Senator Mike Enzi also marks the Farm Bill as his top agriculture priority, saying that the legislation will likely be the most significant piece of legislation considered this year for the agriculture community.
    For the bill, Enzi looks to continue improving the efficiency of conservation programs.
    Further, Lummis points out one provision of the current Farm Bill proposal, which would consolidate the current 23 conservation programs into five groups: working lands programs, regional partnerships, easements, the Conservation Reserve Program and everything else.
Labor laws
    The Department of Labor (DOL) proposed rules on child labor has created a stir in the agriculture world and is an area of concern for Wyoming’s delegation.
    “One particular Washington rule that needs to be stopped immediately comes out of the DOL. The DOL recently proposed a rule that would ban youth under the age of 16 from participating in many common farm-related tasks,” says Barrasso. “If this rule were to go forward, many of Wyoming’s family ranches would lose a huge part of their workforce – not to mention a way of life.”
    As a member of the House Appropriations Committee, Lummis says proposals like the child labor rules are a good example of when Congress needs to weigh in by including riders on funding legislation.
Regulatory overreach
    “Congress continues to work on reducing the number and scope of burdensome government regulations,” says Lummis.
    She adds that the House has already passed measures to halt EPA overreach in other areas, such as day-to-day production, and measures to ensure that perceived benefits of EPA rulemaking is weighed against the cost of the actions.
    “Another example of Washington overreach is the Environmental Protection Agency’s (EPA) attempt to take control of all water in the United States,” says Barrasso.
    Barrasso explains that a recently issued guidance by the agency has overturned the definition of federal water of the United States, broadening that definition.
    “It signifies EPA’s intention to regulate even the smallest bodies of water on private land – including mudflats, sand flats, wetlands, sloughs, prairie potholes, wet meadows and natural ponds,” adds Barrasso. “There is absolutely no reason for the EPA to keep tabs on every single body of water, however small.”
Other priorities
    Enzi also mentions that a focus on continuing to cut spending and address livestock marketing issues is at the top of his agenda for agriculture this year.
    Lummis adds to her list of concerns the White House’s insistence on the removal of provisions to protect Wyoming’s wolf management plan from judicial review, saying that no plan will satisfy environmental litigation groups.
    For Wyoming’s wolf plan to succeed, Lummis notes that ensuring the plan has both the time and breathing room it needs to succeed is a top priority.
    Barrasso has been working on several other bills in Congress that will benefit agriculture if passed, including the Grazing Improvement Act (S 1129), the Wilderness and Roadless Area Release Act (S 1087) and the Employment Impact Act (S 1219).
    The Grazing Improvement Act would extend livestock grazing permits from 10 to 20 years, with other reforms.
    “This bill gives Wyoming’s ranching communities the certainty and stability they need,” says Barrasso.
    Barrasso’s Wilderness and Roadless Area Release Act would also provide ranching communities the continued ability to have input for managing multiple-use public lands.
    Another bill that Barrasso has introduced that he sees as beneficial to agriculture is the Employment Impact Act, which would require federal agencies to prepare a “Jobs Impact Statement” for new rules to force the government to take the impact on jobs and the economy into account.
    “There are several pieces of legislation that I’ve introduced this Congress that block Washington’s power grab over all farms, ranches, small businesses and rural communities,” says Barrasso, adding, “All of these bills work to repeal Washington’s one-size-fits all regulations that are currently strangling Wyoming’s ranching communities.”
    Saige Albert is editor of the Wyoming Livestock Roundup and can be reached at This email address is being protected from spambots. You need JavaScript enabled to view it..

In a continuing effort to reduce the number of rules livestock producers deal with and consolidate those rules into an easier, more user-friendly format, the Wyoming Livestock Board (WLSB) initiated the process to revise four sets of rules on Jan. 6. 

“We are sending out the vet loan repayment program, rabies, bison designated as wildlife, B. ovis and brucellosis rules out for comment,” says Wyoming State Veterinarian Jim Logan. “These changes shouldn’t be very controversial.”

Rabies rules

The first rule undergoing changes is Chapter One Rabies Prevention and Post Exposure Management Rules. 

The rule revisions are being pursued “to better establish protocols for the post-exposure management of animals that have been exposed to a rabies infected animal and for management of animals that have exposed humans or other animals.”

Because of the reservoir of rabies in Wyoming’s wildlife populations, Logan notes that it is important to clarify minimum quarantine periods for exposed domestic animals. 

It also further clarifies involvement of licensed veterinarians in the process. 

“This is strictly a state veterinarian rule,” Logan notes, “but I have worked closely with the Wyoming Department of Health in developing these changes.”

Brucella ovis

Chapter 12 Rules and Regulation Governing Brucella Ovis Certification are also undergoing revisions, and Logan notes that the amendments make updates that are much needed. 

“This rule is at least 10 years old, and it needed some scientific updates,” Logan says. “It changes the age at which rams need to be tested from nine months down to six months.”

“The revisions to the rule are intended to update the certification protocols to utilize recent scientific findings so the rule is scientifically sound for the purpose of assuring that ‘certified free flocks are truly free of the disease,’” comments the WLSB. 

 Because Brucella ovis causes ram epididymitis and infertility in rams, as well as transient infertility in ewes, many states, including Wyoming, require a negative test for the bacteria prior to importation. As an alternative for pre-entry testing, rams can originate from a “certified-free flock.” The rule changes improve the rule by bringing it up-to-date with the latest science. 

Bison

Chapter 16 of the WLSB rules, Bison Designated as Wildlife, is being presented for repeal to eliminate duplication in rules. 

“The primary reason for repealing these rules is because the Wyoming Game and Fish Commission and the WLSB already have a very similar joint rule, Chapter 41 Bison Designated As Wildlife, which was recently revised,” says the WLSB. “There is no need for each agency to have a separate rule that addresses the same issues.”

Vet loans

The Vet Loan Repayment Program, governed by Chapter 23, serves to help veterinarians with outstanding educational debt to pay back a percentage of their loans and is undergoing rule revisions to clarify things that need to be done, both by the WLSB and veterinarians. 

“The Wyoming Livestock board is proposing to amend the Chapter 23 Veterinary Loan Repayment Rules to better clarify the process for determining “areas of need” or “veterinarian shortage areas,’” reads the statement released by the WLSB. “These changes will provide uniformity between the terminology in the rules and the contract between the veterinarian and the Board.”

Additionally, the changes clarify the responsibilities of the veterinarian to provide a report to the WLSB to account for their services rendered, as well as establishment of licensure and accreditation requirements for those vets participating in the program

Future work

Logan encourages producers and veterinarians to review the rules and make comments if they have concerns. 

He also notes that the WLSB is currently working on consolidating several other sets of rules and will be releasing those for public comment this year. 

On a national level, Logan says that recent proposed changes by USDA’s Animal and Plant Health Inspection Service (APHIS) to the Animal Disease Traceability rules are not likely to have major impacts on cattle producers. 

“These changes may have some positive impact on the markets, if it goes through,” he adds. “We are still reviewing the rules, and I will make comments, but we have some time before comments are due on those.”

Saige Albert is managing editor of the Wyoming Livestock Roundup and can be reached at This email address is being protected from spambots. You need JavaScript enabled to view it..