LMD May 2020

Riding Herd “The greatest homage we can pay to truth is to use it.”

– JAMES RUSSELL LOWELL

May 15, 2020 • www.aaalivestock.com

Volume 62 • No. 5

The Proof Is In The Past

BY LEE PITTS

T

here have been three ways in which public lands ranchers have tried to fend off the federal government from putting them out of business. Many have tried to fight them in the courts, the best example being the very courageous and sad story of the Hage family. After years and years of legal wrangling they finally won the battle... but lost the war.

The second way to try to remain in business as a public lands rancher is the way of the radicals and revolutionaries like the Bundy’s. Down through history this has proven to be a long, difficult and dangerous way to bring about change. Just ask LaVoy Finicum’s family after he was was killed by federal agents.

The Third Way Then there is a little used third way, to try and maintain a viable public lands ranching industry: by using the truth in the court of public opinion. It’s cheaper than courts with judges and involves far fewer lawyers, but it requires years and years of hard work.

One person who has followed this third way is the best truth teller I know and yet, he’s probably someone you’ve never heard of. That’s because Cliff Gardner has had his head hidden in books both in law libraries and community libraries to get at the truth and to win the public lands battle with facts. The jury is still out if this third way will work any better than the other two simply because environmental groups aren’t interested in the truth.

It’s Those Darn Models Again

NEWSPAPER PRIORITY HANDLING

One of the arguments put forth by those who would kick

Don’t squat with your spurs on. cows off federal ranges is that cattle destroy “biodiversity”.

The greens contend that when the white man came west they found land that was ideally suited for all sorts of wildlife.

They invent wild claims and sponsor professors to say things like, “Humanity has wiped out 60% of animal populations.”

Or, “Biodiversity, and natural resources caused directly or indirectly by humans has caused global warming, biodiversity loss, ecological crisis, and eventual ecological collapse.” Or, “The current rate of global diversity loss is estimated to be 100 to 1000 times higher than the (naturally occurring) background extinction rate.” And, “Models indicate that about half of the biosphere has seen a “substantial net anthropogenic change” in species richness.”

That’s a highfalutin way to say there were lots more animals and birds of all species before

man let loose his thundering herds of cattle. (As opposed to thundering herds of bison?)

What is the green solution to all these “models” that predict the end of the world? Get rid of cattle and cattlemen, of course.

What Was The West Like?

To debunk such ridiculous claims one has to answer the question... “What was the west really like when white man first came West?”

Cliff Gardner has researched that question more in depth than any person I know. Says Gardner, “From the time of my first getting involved in seeking solutions to public lands conflicts, my greatest frustration has been the refusal of those in government to acknowledge that the great abundance of wildlife that so many of us experienced during the early to mid 1900’s was the product of the range livestock industry, west-

ern settlement, and predator control.”

Personally, one of my greatest heroes in the history books is a man named Jedidiah Smith.

He was the first white man to cross the Sierras, the first to explore the Great Basin and the first American to cross into California. His discoveries included the historic South Pass of the Rocky Mountains, a large part of the valley of the Great Salt Lake, and he was the first explorer to travel the full length of the San Jouquin valley. He explored the Klamath River and the coast to Central Oregon and led an extraordinary journey from the lower reaches of the Columbia to the western border of Wyoming. It was Jedidiah Smith who prepared the way for the emigrant trails to follow.

This unassuming, nearly forgotten man died at 32 years of age when he was surprised at a waterhole in New Mexico by a band of Comanches. Of the 32 men who had shared his adventures, 25 died at the hands of the Indians.

Cliff Gardner has delved into the travels of Jedidiah Smith to see if he could discern the state of wildlife in the West in the 1800’s. According to Gardner, “In a letter to Captain William continued on page two

US Supreme Court Decides Maui County Clean Water Act Case

BY TIFFANY DOWELL LASHMET / ASSOCIATE PROFESSOR& EXTENSION SPECIALIST IN AGRICULTURAL LAW, TEXAS A&M AGRILIFE EXTENSION

T

he much-anticipated United States Supreme Court decision in County of Maui v. Hawaii Wildlife Fund was released last week. It is a fascinating decision that results in the Court adopting a “functional equivalent” test

Background Under the federal Clean Water Act, it is unlawful to discharge a pollutant from a point source into a Water of the United States without obtaining a federal permit. The question before the US Supreme Court is whether a permit is required when pollutants originate from a point source, but travel through a non-point source (groundwater) to reach the Water of the United States. Put another way, the Court must decide whether an “indirect discharge” is within the scope of the Clean Water Act.

The Act defines the following terms: • “Pollutant” is broadly defined as: “dredged spoil, solid waste, incinerator residue, sewage, garbage, sewage sludge, munitions, chemical wastes, biological materials, radioactive materials, heat, wrecked or discarded equipment,

rock, sand, cellar dirt and industrial, municipal, and agricultural waste discharged into water.”

• “Point source” is defined as “any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from which pollutants are or may be discharged. This term does not include agricultural stormwater discharges and return flows from irrigated agriculture.”

• “Discharge of a pollutant” means “(A) any addition of any pollutant to navigable waters from any point source, (B) any addition of any pollutant to the waters of the contiguous zone or the ocean from any point source other than a vessel or other floating craft.”

This case arose in Hawaii, where the County of Maui operates a wastewater reclamation facility on the island. The facility collects sewage from surrounding areas, partially treats it, and then pumps the treated water (approximately 4 million gallons per day) through four disposal wells into the groundwater. The wastewater travels through the groundwater approximately 1/2 mile to the Pacific Ocean. In 2012, several environmental groups filed suit against the continued on page four

by LEE PITTS

THEIRS WARNING: People with high blood pressure or ulcers should not read this column.

L

et’s talk taxes, shall we? I am qualified to discuss this subject because in addition to all my other talents, like being able to juggle and do quadratic equations, I am also a CPA. That’s right, I’m a member of the Cow Punchers Association (CPA) who get together on a semi-regular basis to eat a tax deductible lunch and cuss the IRS. I’m qualified to discuss and cuss taxes because in 45 years of paying them I’ve only been audited once by the IRS. And after that audit the IRS actually sent me a check for $500 that I overpaid. I became immediately intaxicated; that’s the euphoric feeling one gets when he or she gets money back from the IRS. I’m really glad that National Emancipation Day has come and gone. That’s the day every year when you quit working for the government. It’s calculated by the Tax Foundation and in 2019 it was April 16. According to the Tax Foundation the average American will spend 42 days just to pay state and federal taxes, 29 days to pay Social Security and Medicare, 11 days paying property taxes, 13 days to pay the interest on the national debt and 14 days for national defense. That’s the equivalent of 109 days per year to pay all your taxes! Another way of looking at it is you’re working every Monday just to pay state and federal income tax. In a normal eight hour day nearly three of the hours are spent working for the government.

When you add in sales taxes and other assorted fees and licenses you spend more on taxes than you do for food, clothing and shelter combined. For a nation that was established to avoid taxes we sure do pay a lot of them.

After I overpaid the one year I did our taxes my wife never trusted me again and so we send them off to a real CPA who “prepares them”. Albert Einstein, universally considered the smartest person of his generation, said the hardest thing in the world to understand is the income tax

continued on page three

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Livestock Market Digest

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May 15, 2020

PROOF Clark, Smith described one trip as follows: ‘After travelling 22 days from the east side of Mount Joseph (the Sierra Nevada Mountains) I struck the southwest corner of the Great Salt Lake, traveling over a country completely baron and destitute of game. We frequently traveled without water, sometimes for two days, over sandy deserts where there was no sign of vegetation and when we found water in some of the rocky hills we most generally found Indians who appeared the most miserable of the human race. When we arrived at the Salt Lake, we had but one horse and one mule remaining, which were so feeble and poor they could scarcely carry the little camp equipage which I had along. The balance of my horses I was compelled to eat.”

Another explorer Gardner studied was Milton Sublette who in 1831 was the next man to lead a party of trappers to Nevada’s Mary’s River. According to Gardner, “Finding no game, the party was forced to eat the flesh of the beavers they caught.”

When they were unable to find anything to eat along the river, “It became necessary to at once abandon the river, and strike across the country toward the north (through today’s northern Elko County) where after being four days with almost no food and several weeks in the state of famine they reached the Snake River. They were forced, as they passed through the country, to subsist upon ants, crickets, parched moccasins, and the pudding made from the blood, taking a pint at a time from their famished animals.”

According to Gardner, one of those with Sublette, Joe Meek, recalled “holding his hands in an ant-hill until they were covered with ants, then licking them greedily. He remembered crisping in the fire and eating the soles of his moccasins. Even the large black crickets infesting the country were welcome game.”

“Joe Walker, in 1833, was the third man to take a party of men across today’s Nevada, “ says Gardner. “Zenas Leonard served as clerk for the expedition. Zenas wrote, ‘At this place, all the branches is collected from the mountains into the main channel, which forms quite a large stream; and to which we give the name Barren River, a name which we thought would be appropriate.”

Later, as the party was descending the western slope of the Sierras, Zenas wrote, “One man killed a deer, which he carried to camp on his back. The animal was dressed, cooked and eaten, …in less time than a hungry wolf would devour a lamb”.

For fourteen days they had lived on nothing but horse flesh.

“Think of it,” says Gardner, “Between 1846 and 1853, it is estimated that some 165,000 men, women and children passed through the Great Basin on their way to California, accompanied by nearly one million cattle, sheep and horses. Think of the impact these animals must have had on the environment along the Humboldt and elsewhere during that period. But did things deteriorate – was the grass abused and depleted? Not according to the logs and diaries that were kept.

Almost to a person, it was indicated that grazing conditions were improving – that there was

continued from page one

more grass and feed found then, than had been found earlier.”

Our Spotted Owl Just as the feds used the spotted owl to destroy the timber industry in the Great Northwest, they are now attempting to use the sage grouse to destroy the cattle industry. According to Gardner, “All in government seem bent on ignoring the fact that during the first twenty years of exploration into the Great Basin, no one mentioned seeing sage grouse. Jedediah Smith never mentioned seeing sage grouse during his trip across central Nevada in 1827.

John Work never mentioned seeing sage grouse while trapping throughout much of the northern portion of today’s Nevada in 1831. Zenas Leonard never mentioned seeing sage grouse in 1833. Nor did Joe Meek, John Bidwell, John Fremont, Charles Preuss, Heinrich Lienhard, or James Clyman.

“The thing that makes such testimony interesting,” says Gardner, “is the lack of wildlife that was seen by each of these men - for twenty years, from 1827 through 1846, while living outdoors and observing nature from daylight till dark; collectively traveling hundreds and hundreds of miles; practically starving, and testifying to the baron condition of the countryside lends little support for the theory that everything should be returned to its pristine state.

“But even more interesting,” continues Gardner, “was the fact that many of the later travelers were mentioning in their diaries, that they were seeing a few sage grouse from time to time.

In fact, it appears that from that time forward, more and more grouse were seen – until along in the 1860’s and 70’s market hunting began to occur. Right up through the 1920’s, 30’s, 40’s, and 50’s – as predator control methods improved, so were there more sage grouse, more deer, and more song birds seen.”

In all his research Gardner found that sage grouse were not abundant anywhere within the Great Basin during the time when it was in a ‘pristine state’.

“Even the natives, when interviewed by the famed anthropologist Julian Steward in the early 1930’s only mentioned Indians making mention of using sage grouse as a food item but once.

Truth is, it was not until later, after hundreds of livestock had began impacting the area that range conditions began to improve.

“It wasn’t until after newcomers to the west settled down and got rid of predators to protect their own livestock that sage grouse, or what they called “sage chickens” multiplied to the point they could be harvested “by the gunny sack full”. According to Gardner’s research, “Ducks and other waterfowl clouded the skies and song birds were everywhere,”

The Magic of Man “When the settlers began taking up lands along the Humboldt in the 1860’s,” says Gardner, “they created one of the greatest wildlife habitats in the West. By damming the river repeatedly, they forced spring waters to flow out over the greater portion of the valley floors, filling every slew and depression continued on page four

May 15, 2020

Livestock Market Digest

Page 3

Texas Non-Profit Raffling Off Herd of Cattle Worth Nearly $20,000 I f you’ve ever dreamed of owning a herd of cattle, now is your chance!

The Washington on the Brazos Historical Foundation is hosting a raffle called ‘Beef on the Brazos’ where you can win 20 F1 Braford heifers.

Raffle tickets are being sold until the end of June at $50 each. The group says only 2,000 tickets will be sold to win the heifers, which have an estimated value of nearly $20,000.

RIDING HERD code. Which is currently seven million words long. It definitely takes more brains to figure out the the income tax due than it does to make the money in the first place.

We interviewed a few different CPA’s before we decided on the person who would eventually do our taxes for 40 years. The first guy we talked to asked us stuff like, “How aggressive do you want to be?” And, “Are either of you divorced?” I asked why he would ask such a question and he said, “The biggest snitches to the IRS are divorced wives and husbands.”

The second CPA we talked to spent a long time explaining the difference between “tax avoidance” and “tax evasion” both of which cost him ten years in the slammer later on in his career.

I’m glad we didn’t choose him or we might be bunkmates right now in San Quentin.

The third CPA asked me all sorts of questions like, “Are you a competitive body builder?”

He should have known just by looking at me. It turns out that a body builder can deduct

The cattle will be delivered free within 100 miles, or, if the winner prefers, they will be delivered to Cattleman’s Livestock Auction in Brenham, Texas with a check sent directly to the winner. The group says the heifers each weigh between 700 and 800 lbs.

The drawing will take place June 30 at Independence Hall at Washington on the Brazos and will be streamed on the group’s Facebook page.

continued from page one

the oil put on his or her bulging muscles. The CPA also asked if my wife was an actress because if she was we could write off a pair of fake boobs as a stage prop. He also explained how we could deduct a cat who killed mice who ate feedstuffs, if we only had a cat. We left when he told us how we could deduct last years taxes as a bad investment.

When we entered the office of the fourth CPA he had a big sign on one wall that just said, THEIRS. “Look at that word and tell me what you see,” the CPA said, as if it was an eye exam. “If you see just one word you could end up in the jailhouse. If you see two words you’ll probably end up in the poorhouse. If you see see two words, THE IRS, you’re already well aware of who is gonna end up with all the money you made last year.”

Then he handed us a worksheet and a prescription for a new drug called Senditall. www.LeePittsbooks.com

All proceeds from raffle tickets will go to the Washington on the Brazos Historical Foundation.

For more details, contact: Wa s h i n g t o n - o n - t h e - B r a z o s State Historic Site 23400 Park Rd 12

PROOF with water. Aquatic vegetation began growing in every low place where the water spread.

Willows and native rose bush increased dramatically, and wildlife became more and more abundant.

“During this same period,” according to Gardner, “ranches were being created on every tributary that afforded irrigation water. In Ruby Valley, Clover Valley, Star Valley, Jiggs, Lee, Lamoille, North Fork, Charleston, Tuscarora, and a hundred other valleys across Nevada, thousands and thousands of wet meadows were developed, creating literally thousands upon thousands of acres of near perfect wildlife habitat.

“Today,” says Gardner, “if a person was to travel from Lovelock east along the Humboldt and through Secret Pass on horseback during the month of May you would see hundreds of meadowlarks, bobolinks, curlews, sandhill cranes, willets, avocets, brewer and redwinged blackbirds, robins, all kinds of ducks, geese and dozens of other kinds of birds. And if you would have traveled the same route in the 1950’s you would have seen hundreds of deer and sage grouse as well.”

Blinded By Smoke According to Gardner, “The greatest problem we face today is not wetland degradation, but rather ever increasing regulation. So caught up are we in environmental ideology that we seem to ignore the truth. From the time this country was settled, up until the early 1960’s, wildlife numbers exploded across the western United States – and for good reason, stewardship and productiveness of lands always increase when tenure (property rights) is recognized. Our American system of government when pursued as originally intended, is the greatest system ever devised for the benefit of wildlife.

“The absolute worst thing that can hap-

Washington, TX 77880 936-878-2214

washington-on-the-brazos@thc.texas.gov

continued from page two

pen,” continues Gardner, “is for government to get involved in land and resource management. Government intervention makes things worse, not better. Our national parks and wildlife refuges are a prime example. Since the early 1930’s there have been over 480 wildlife refuges created on the North American continent. These refuges encompass the most important wetlands on the continent, yet by the National Fish and Wildlife Service’s own figures, less than 2% of all waterfowl raised in North America are raised on wildlife refuges.”

Gardner says, “One of the greatest problems we face today is governmental disinformation. Bureaucracy by nature works unceasingly to justify its existence, its power, and its budgets. If they are to continue in business, they must find a villain to slay, and in the instance of the BLM and Forest Service and the Nevada Division of Wildlife, that villain most generally is the livestock industry.

“In the last 10 years, governmental holdings of land in the United States, have increase by 18 million acres. And why has this happened?” asks Gardner. “It’s simply because the agencies have done such an exceptional job of convincing the public that our environment is being destroyed – and, that the only possible way our wildlife can be saved is if more and more lands are brought under governmental control and protection.”

It’s not just a coincidence that as livestock numbers on public lands have declined by as much as 70 to 75%, huge amounts of grass are left on our rangelands each year causing ever increasing wildfires to rage out of control. And more and more your average urban American can’t see through the smokescreen to find the truth.

After days, months and years of digging Cliff Gardner found that truth: “The true enemy of wildlife in America today is not ranching, it’s government.”

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Livestock Market Digest

May 15, 2020

MAUI County of Maui claiming these disposal wells were discharging a pollutant from a point source into a WOTUS without the required permit.

Litigation The trial court sided with the environmental groups, finding that because the “path to the ocean is clearly ascertainable” the discharge from the disposal wells into the groundwater was “functionally one into navigable water.” Thus, the court ruled a permit was necessary in this circumstance. The County appealed.

The United States Court of Appeals for the Ninth Circuit affirmed, but did so applying a different standard. There, the court held that a permit was required because the pollutants were “fairly traceable from the point source to a navigable water such that the discharge is the functional equivalent of a discharge into the navigable water.” The County sought review from the United States Supreme Court, and their petition was granted.

The US Supreme Court heard oral arguments in this case last November, and several of my colleagues and I were lucky enough to attend. To hear our thoughts after the argument, click here.

Majority Opinion Justice Breyer delivered the Court’s Opinion and was joined in the majority by Justices Ginsburg, Kagan, Sotomayor, Roberts, and Kavanaugh.

The Opinion initially notes the linguistic question in the case is really the meaning of the word “from” as used in the statutory definition of “discharge of a pollutant:” “any addition of any pollutant to navigable waters from any point source.”

The Court Addresses the Parties’ Arguments The Court then summarizes the arguments of the parties. The environmental groups essentially adopted the 9th Circuit “fairly traceable” test, arguing that if a point source discharge reaches a navigable water, even if it traveled “long and far through groundwater,” it would be subject to the Act’s requirements. Conversely, the County argued for a bright-line “means of delivering pollutants” test whereby a pollutant is deemed “from” a point source only if that point source is “the last conveyance that conducted the pollutant to navigable waters.” The Solicitor General, on behalf of the Environmental Protection Agency, argued that the release of pollutants into groundwater is not subject to the Clean Water Act, regardless of subsequent migrations into jurisdictional water.

The Court states the correct meaning of “from” lies somewhere in the middle of the parties’ approaches. “We agree that the statutory context limits the reach of the statutory phrase ‘from any point source’ to a range of circumstances narrower than that which the Ninth Circuit’s interpretation suggests. At the same time, it is significantly broader than the total exclusion of all discharges through groundwater described

by Maui and the Solicitor General.”

In responding to the Ninth

continued from page one

Circuit’s “fairly traceable” test, the Court notes that eventually virtually all water makes its way to a WOTUS and the power of modern technology allows tracing back over great distances, many years, and even in highly diluted forms. Interpreting “from” this broadly is inconsistent with the Clean Water Act’s purpose, the Court reasons, noting that under this test, even pollutants carried to WOTUS on a bird’s feathers or the 100year migration of pollutants through 250 miles of groundwater could be jurisdictional.

Additionally, the Clean Water Act intended that the responsibility for regulating groundwater and non-point source pollution be left to the states.

This, the Court reasons, indicates Congress did not intend such a broad definition of the word “from.” Legislative history also points to a narrower view of the Act as Congress expressly rejected requests to extend the permitting requirement to groundwater. Lastly, the Court notes that although the EPA has applied the permitting requirement to discharges that travel through groundwater, it has done so in a more limited fashion than the “fairly traceable” test, in particular rejecting application where there was a long time period between the discharge being made into the groundwater and reaching the WOTUS. Next, the Court turns to the County’s arguments, deeming them “too narrow” and noting its proposed test could “risk serious interference with EPA’s ability to regulate ordinary point source discharges.” The court referenced the hypothetical of a pipe spewing pollutants directly into coastal waters. If the County’s test were adopted and any amount of groundwater between the pipe and the waters allowed the owner to avoid jurisdiction, why would he not move the end of the pipe back a few yards so that the pollution traveled through at least some groundwater to evade the permitting requirement?

Then, the Court addresses the Solicitor General’s arguments, which reflect the EPA’s recent Interpretive Statement that the Act excludes “all releases of pollutants to groundwater.”

The Court notes that neither party requested Chevron deference be given to this Interpretive Statement, but the Court does indicate it “pays particular attention to an agency’s views in light of the agency’s expertise in a given area, its knowledge gained through practical experience, and its familiarity with the interpretive demands of administrative need.” Even with that attention, the Court found the EPA’s determination would “open a loophole allowing easy evasion of the statutory provision’s basic purposes.”

The Court Adopts “Functional Equivalent” Test The Court, instead, adopts a “functional equivalent” test.

“We hold that the statute requires a permit when there is a direct discharge from a point source into navigable waters or when there is the functional equivalent of a direct discharge.“ In other words, a permit is required when a “point source directly deposits pollutants into navigable waters, or when the discharge reaches the

same result though roughly similar means.”

By way of example, the Court stated that “where a pipe ends a few feet from navigable waters and the pipe emits pollutants that travel those few feet through groundwater (or over the beach), the permitting requirement clearly applies. If the pipe ends 50 miles from navigable waters and the pipe emits pollutants that travel with groundwater, mix with much other material, and end up in navigable waters only many years later, the permitting requirements likely do not apply.”

The Court recognizes the difficulty with this approach being how to deal with the “middle instances.” The Court identifies seven factors that could potentially be considered depending on the circumstances of the specific case: (1) transit time; (2) distance traveled; (3) the nature of the material through which the pollutant travels; (4) the extent to which the pollutant is diluted or chemically changes as it travels; (5) the amount of pollutant entering the navigable waters relative to the amount of the pollutant that leaves the point source; (6) the manner by or area in which the pollutant enters the navigable waters; and (7) the degree to which the pollution (at that point) has maintained its specific identity. The Court believes that time and distance will be the most important factors in most, but not necessarily all, cases.

The Court expects that the judiciary can provide guidance through decisions in individual cases, noting that those lower court decisions “should not create serious risks either of undermining state regulation of groundwater or of creating loopholes that undermine the statute’s basic federal regulatory objectives.” The EPA can provide administrative guidance as well through its permitting options and general rulemaking.

Response to Dissenting Opinions The Court also responds to criticisms contained in the dissenting opinions.

The majority believes that there is no linguistic basis to limit the word “from” to mean only the pollutant’s immediate origin. Justice Thomas argues that in a case of discharge through groundwater, the pollutants came from the groundwater. The majority argues that does not mean it did not also come from the point source.

The Court offers an example of a traveler arriving at a hotel.

He came from a train station, from Baltimore, from Europe.

He came from all three. Thus, a sign instructing anyone arriving from Baltimore to speak to the desk clerk would include the traveler, even though he immediately came from the train station. Additional examples involving gravy and baths are used to illustrate this principle as well.

Thus, the Ninth Circuit opinion was vacated, and the case remanded for further action consistent with this Opinion.

Concurring Opinion Justice Kavanaugh issued a Concurrence where he highlighted three points.

First, he believes the Court’s

interpretation and rejection of the parties’ approaches is consistent with the Scalia approach in the Rapanos case (prior Supreme Court case involving scope of “Waters of the United States”).

Second, he says that the statute does not establish a brightline test regarding the meaning of “from” and the “source of the vagueness is Congress’ statutory text, not the Court’s opinion.”

Third, he responds to Justice Thomas’ criticism that the Court does not commit to which factors are the most important in determining “functional equivalent” by pointing to the Court’s statement that time and distance will likely be the most important factors in most cases.

Dissenting Opinions There were two dissents in the case.

Thomas Dissent Justice Thomas’ dissent was joined by Justice Gorsuch.

They would “adhere to the text” of the Clean Water Act and hold “that a permit is required only when a point source discharges pollutants directly into navigable waters.” They believe the majority improperly “departs from the statutory text” by adopting the functional equivalent test. He would reverse the judgment of the Ninth Circuit.

Thomas believes that the focus should not be on the word “from,” but instead on the word “addition,” which he believes “excludes anything other than a direct discharge.” He writes that “addition” denotes an “augmentation or increase.” Thus, “when a point source releases pollutants to groundwater, one would say that the groundwater has been augmented with pollutants from the point source. If the pollutants eventually reach navigable waters, one would not naturally say that the navigable waters have been augmented with pollutants from the point source. The augmentation instead occurs with pollutants from the groundwater.”

The prepositions “to’ and “from” reinforce this reading.

When pollutants are released from a point source, they are released to the next source (such as groundwater) from the point source. If the pollutants later make their way into a WOTUS, they are released from the groundwater to the WOTUS. One would not naturally say pollutants were added to the navigable waters from the original point source.

The dissent also criticizes the majority’s test for “ultimately [doing] little to explaining how functionally equivalent an indirect discharge must be to require a permit.” Thomas also notes that the idea that the EPA could clarify matters is unlikely because so far the EPA provided only limited guidance and recently changed its position, and he believes that the “general rules” the majority mentions are “constitutionally suspect.”

Lastly, Thomas and Gorsuch agree with the majority on several points. The dissenters agree that the 9th Circuit “fairly traceable” test is unsupportable. They agree that the County and Justice Alito incorrectly read the word “any” into the text incorrectly. Thomas and Gorcush also agree that the EPA’s opinion is not entitled to

deference for two reasons: (1) The parties did not request it, and (2) EPA’s reading is not the best one. The dissent indicates that Chevron deference is likely unconstitutional. Finally, the dissent agrees with the majority’s implied conclusion that Rapanos does not resolve this case as that opinion expressly did not address this issue.

Alito Dissent Justice Alito’s first paragraph pulls no punches: “If the Court is going to devise its own legal rules, instead of interpreting those enacted by Congress, it might at least adopt rules that can be applied with a modicum of consistency. Here, however, the Court makes up a rule that provides no clear guidance and invites arbitrary and inconsistent application. ” m, Alito believes that only two options exist. Either a pollutant that reaches the ocean would be understood to have come “from” a pipe if the pipe originally discharged the pollutant and it made its way to the ocean by flowing over or under the surface of the ground, or the pollutant that reaches the ocean should be understood to have come “from” the pipe only if it was discharged from the pipe directly into the ocean. The court’s attempt to find a middle ground, he believes, is not plausible under the text and the test articulated has no clear meaning. He points to the problem with the majority’s traveler analogy, arguing it is unclear when one stops coming “from Europe” and instead comes from some geographic coordinates in the Atlantic Ocean.

Alito opines that entities like water treatment authorities need to know whether they must get a permit and should not be left with a “nebulous standard” from the Court. “Functional equivalent” does not offer that certainty. “Functional equivalent may have a quasi-technical ring, but what does it mean?”

Further, he states, “How the rule applies to ‘middle instances’ will be anybody’s guess. Except in extreme cases, discharges will be able to argue that the Court’s multifactor test does not require a permit. Opponents will be able to make the opposite argument. Regulators will be able to justify whatever result they prefer in a particular case. And judges will be left at sea.”

Alito also asserts that the “functional equivalent” test impinges on the State’s authority by expanding federal point source regulation at the expense of state non-point source regulation. The test also offends the “clear-statement rule” that Congress must speak clearly if it wishes to assign an agency decisions of vast economic and political significance. By broadening the coverage of the Clean Water Act, Alito maintains, the “functional equivalent” test assigns this type of power to the EPA. Justice Alito appears to agree with the majority that the tests advanced by the parties are too extreme. He would interpret the words of the statute and reach the better of the two options, holding that “a permit is required when a pollutant is discharged directly from a point source to navigable waters.”

He would reverse and instruct the lower court to apply this test.

May 15, 2020

Livestock Market Digest

Page 5

Raider Red Meats Provides Opportunity for Students to Stay Engaged in the Time of Coronavirus

I

n mid-March, buildings on the Texas Tech University campus shuttered their doors, and faculty, staff and students were sent home to complete the semester online as a result of the COVID-19 pandemic that has gripped the entire world.

But as campus administrators and state and local officials began to deal with the coronavirus outbreak, one part of campus has been able to maintain some sense of hands-on learning. That’s because the service it provides has been deemed essential for the population to survive.

Raider Red Meats, the retail aspect of the Department of Animal & Food Sciences in the Texas Tech College of Agricultural Sciences & Natural Resources, continues to supply consumers with quality meat products, from ground beef to pork and lamb. Their ability to ship meat has allowed a handful of students to stay on campus to help process meat and fill orders.

“We use students for most of our operations, and without them, we would not be able to operate very efficiently,” said Raider Red Meats Director Tate Corliss. “We are open for experiential learning outcomes for our students. Our store has been closed on campus, but we have continued to serve businesses in Lubbock and meet online orders, shipping orders daily through Federal Express.”

Raider Red Meats has always served as not only a retail business, but a way for students to gain real-world experience in preparing, packaging and selling meat. Though the restaurant/ store is closed due to the pandemic, the work continues.

Initial surge Prior to the closing of non-essential businesses, the transition for students and faculty to online classes and the governmental orders to stay home when at all possible, Raider Red Meats

experienced a tremendous surge.

As reports of grocery hoarding began to surface and retail grocers across the U.S. began to experience shortages of products, Raider Red Meats saw a sudden surge in business as people sought alternative stores for their beef, pork and poultry needs. Corliss said Raider Red Meats was experiencing record sales until the on-campus store was forced to close.

“When shutdowns began to arise and food demand skyrocketed, we honestly didn’t have enough employees to meet demand,” said Koby Valentine, a senior animal sciences major from Clovis, New Mexico.

“The week of spring break I was working all day just to keep up with daily sales, and it was like nothing I had witnessed in eight semesters of working there.”

The increased demand also caught Raider Red Meats, like others, by surprise just a bit in what exactly the public was looking for. For example, Valentine said that during the week of spring break, Raider Red Meats ran out of ground beef, which he said never happens. He said he processed more than 500 pounds of ground beef in one morning, and that allotment sold out in about two hours later that day.

Raider Red Meats tried its best to keep up with demand, but the initial surge overwhelmed them at first, just like it did everyone else.

“During the first few weeks before our store was closed, my co-workers and I physically couldn’t keep the shelves stocked fast enough,” said Shae Suttle, a sophomore animal sciences major from Idalou. “People came in panic-buying and hoarding hot items, including ground beef and chuck roasts.”

Different demand Suttle added, though, that since people have settled into a stay-at-home routine, Raider Red Meats has been able to get

into a groove as well and is able to keep up with the demand for products online and also service its partners, including United Supermarkets, The Bent Nail, Honey Glazed Ham and the Outdoor Chef, to make a few.

Interestingly there has been a change in purchasing habits.

According to Corliss, as a Go Texan member that supports agriculture, Raider Red Meats gets its products from local and regional sources. Some of its supply also comes from the college’s industry partners, such as Cargill and Tyson as well as from animals harvested locally.

While the quality of meat remains the same, what the public is looking to buy has changed dramatically. Corliss said demand for ground beef, stew meat and beef roasts has increased and Raider Red Meats has shifted production to those kinds of cuts in order to meet demand.

“People are more interested in easy and flexible options, including ground beef, as opposed to our high-quality steaks,” Suttle said. “Typically, grilling season begins as the weather starts to warm up, and usually around this time of year we see a spike in steak sales, including ribeyes, New York strip steaks and tenderloins. However, this pandemic has led to an adjustment in the choice of meat, resulting in a higher demand for lower-quality items.”

Corliss also added that although Raider Red Meats can stay open in its current format as long as is needed with their current processing conditions, they are ready to serve their customers again, even if it is curbside while the university’s buildings remain closed.

for Raider Red Meats during his freshman year in 2016, and it has helped him gain a well-rounded education.

“After learning the business and becoming aware of what if offers, I felt it was a great place to give back to the university,” said Valentine, who will graduate at the end of this semester.

“Raider Red Meats provides scholarships, assists in research, helps interns from foreign countries and works to set the standard for the highest quality protein products in the world. This job kept me from getting into a rut of spending too much time doing leisurely activities like video games or watching TV. I was able to stay focused and motivated to complete coursework in the evenings, even after working long hours.”

Suttle said working at Raider Red Meats has allowed her to build on other skills as well. Both Suttle and Valentine mentioned how the flexibility in scheduling allowed by Raider Red Meats – Suttle is a member the world-famous Texas Tech Meat Judging Team – has been another advantage and made working there even more appealing.

“Not only have I learned how to properly label, package and complete retail orders for customers both in the store and out,” Suttle said, “I have been able to enhance other personal skills, including working with others, communication and responsibility during my time at Raider Red Meats.

I have gained experience that will prepare me for any role in the future. I believe Raider Red Meats has been a crucial part in helping me completely take advantage of numerous opportunities during my college career.”

Learning experience

Students first

In addition to being a job for the students, working at Raider Red Meats provides invaluable experience for those who are planning a career in animal and food sciences.

Valentine began working

Above all else, outside of Raider Red Meats, Valentine, Suttle and the others employed there are students. And this semester is unlike anything they could have dreamed of as to how their spring semester

Supreme Court Groundwater Ruling May Lead to More Litigation

BY GARY BAISE / JEFFERSONPOLICYJOURNAL.COM

I

n February 2018, the U.S. Court of Appeals 9th Circuit held that sewage pollutants at the County of Maui, Hawaii, were traceable to wells which discharge into groundwater.

That is a violation of the Clean Water Act. In September 2018, the 6th Circuit Court of Appeals determined that the Clean Water Act (CWA) does not extend liability when pollution from a point source reaches surface water through groundwater.

Now fast forward to last week. On Thursday, April 23, 2020, the U.S. Supreme Court issued an opinion that states a permit is required “… when there is a direct discharge from a point source into navigable waters or when there is the functional equivalent of a direct discharge.”

This will create enormous amounts of litigation as judges try to determine if rainfall on a farm field seeping into a farm tile will be “a functional equivalent of a direct discharge.”

The justices did criticize the 9th Circuit’s decision on groundwater, saying the ”fairly traceable limitation” was simply too broad for the CWA.

The facts Maui’s wastewater treatment facility collected sewage from the surrounding homes and businesses. It treated this wastewater and pumped approximately four million gallons of treated water into the ground through four wells. This treated wastewater traveled approximately 0.5 miles through groundwater channels and eventually ended in the Pacific Ocean.

Environmental groups alleged that the Maui Treatment Works (MTW) was discharging a pollutant into navigable waters of the U.S. and such a discharge required a CWA or National Pollution Discharge Elimination System (NPDES) permit. A U.S. District Court agreed with the environmental groups, and the 9th Circuit Court of Appeals in San Francisco confirmed the decision saying that when “…pollutants are fairly traceable from the point source to a navigable water” a CWA permit is required.

EPA argued in the case that its interpretative statement should rule. EPA stated, “All releases of pollutants to groundwater are excluded from the scope of the [NPDES] permitting program even where pollutants are conveyed to jurisdiccontinued on page ten

would unfold.

“We have certainly seen a change among our staff,” Suttle said. “We truly are a family, and it has been hard, not only with classes being canceled, but also without the social interactions we took advantage of prior to the outbreak. I think everyone is looking forward to eventually having our friends back on campus.”

Except for Valentine, who is in his final semester as a Red Raider. It’s a semester vastly different than all the others in his time at Texas Tech.

“It has definitely been sad to see campus shut down,” Valentine said. “I love Texas Tech and everything about campus life, and one of my favorite things is to see 36,000-plus students making their way across campus. Campus has gone from feeling like home to just a bunch of empty buildings, and it’s the exact opposite of how I wanted to end my college career.”

Not to mention, all students have had to adjust to a different way of learning.

“I am, personally, not a fan of online classes because I have to fight myself to stay engaged and learn staring at a computer,” Valentine said. “Fortunately, I have already completed all my animal science and meat science classes, and my current classes transfer into online classes effectively.”

Suttle said she has taken several online classes before this semester, so the transition has been somewhat seamless. But what she misses most is the daily interaction with classmates and professors.

“When specifically dealing with meat and muscle biology classes, I believe this change is somewhat harder due to the lack of lab availability and hands-on learning,” Suttle said. “I think Texas Tech is doing everything in its power to maintain student success, but I believe everyone is ready for things to settle down and return to our normal lives.”

Page 6

Livestock Market Digest

Grazing in Wilderness Enviros challenge grazing in wilderness and the lingering odor of fake wilderness

N

ew Mexico and other states have been recently blessed with new Wilderness areas, so we are keeping a watch on recent developments concerning livestock grazing in such areas.

Two new events in Colorado, brought to our attention by Wilderness Watch and Western Watershed Project, deal with the issue of motorized vehicles and equipment in Wilderness.

The first instance is in the Black Ridge Canyon Wilderness, where the enviros have challenged the issuance of tenyear grazing permits because BLM has authorized motorized access to haul camp supplies to support the annual gather, to place salt, and to “check on livestock to avoid or detect emergencies.” Wilderness Watch is claiming ‘this is the only place motor vehicles are allowed for such routine livestock management practices.”

The second instance has

occurred in the Powderhorn Wilderness, where the enviros have challenged the renewal of a ten-year permit because the BLM has authorized the use of a chainsaw to clear fifteen miles of cattle movement corridors, the use of a mini-excavator to clean out a stock pond, and the use of Utility Transport Vehicles to haul in fencing materials.

In both instances, the enviros claim a violations of the Wilderness Act, the Congressional Grazing Guidelines, and BLM’s own regulations. They say the BLM failed to analyze the use of nonmotorized alternatives such as using a crosscut saw or the use of pack animals.

As you contemplate how the pending decisions may affect your allotment, keep in mind the following language from the Congressional Grazing Guidelines: The maintenance of supporting facilities, existing in the area prior to its classification as wilderness (including fences, line cabins, water wells and lines, stock tanks, etc.) is permissible in wilderness. Where practical alternatives do not exist,

May 15, 2020

maintenance or other activities may be accomplished through the occasional use of motorized equipment.

This may include, for example, the use of backhoes to maintain stock ponds, pickup trucks for major fence repairs, or specialized equipment to repair stock watering facilities. Such occasional use of motorized equipment should be expressly authorized in the grazing permits for the area involved. The use of motorized equipment should be based on a rule of practical necessity and reasonableness…

Indeed, if you are a wilderness allotment owner, you should have the complete guidelines readily available whenever dealing with the Forest Service or the BLM.

state sovereignty, and sends the message to the citizens of Idaho that the federal government will continue to treat the valuable and diverse open spaces of the West not as lands of many uses, but rather as lands of no use and no access for the people who live and work in Idaho and other western states.”

As a result, Congress prohibited the use of federal money to carry out the order and in June of 2011 Salazar revoked Secretarial Order 3310. That, however, has not stopped the BLM from continuing to implement the policy.

In August of 2012 the Congressional Western Caucus discovered two BLM manuals that resurrected the controversial Fake wilderness policy and that even included You have heard of fake meat language lifted directly from the and fake news. Let me introduce supposedly revoked Secretarial you to fake wilderness.

Order. The Caucus then wrote In December of 2010, during to Interior saying, “The Departthe Obama administration, Sec- ment’s recent actions greatly unretary of Interior Ken Salazar dermine both your commitment issued Secretarial Order 3310 to working with us, your duty to which instructed BLM to in- follow both the letter and spirit ventory “lands with wilderness of the Congressional mandate to characteristics” on a regular and withhold funding for the Wildcontinuing basis, and further to lands policy, and the Obama protect these lands through land Administration’s commitment use planning. This created a huge towards being the ‘most transcontroversy among stakehold- parent’ in history. We urge you ers and members of congress. to withdraw BLM Manuals 6310 For instance, Idaho Governor and 6320 immediately…”

Butch Otter testified, “I urge The BLM manuals have not Congress to take back its au- been revoked and that is where thority and prevent further de- we stand today. velopment and implementation These lands were originally of Secretary Salazar’s Order. inventoried under Section 603 This Order exempts stakehold- of FLPMA and found to be ers, threatens the spirit of col- unsuitable for wilderness. So laboration and cooperation, how is the BLM getting around weakens the process, discounts that? By lowering the standards.

Lands with wilderness characteristics (LWC) do not have to have the mandatory wilderness characteristics, i.e., they are fake wilderness. And, lowering the standards means that more lands can be designated under this new criteria.

Here we are three years into the Trump administration and BLM field staff are still inventorying and designating “Lands with Wilderness Characteristics.”

The President of the New Mexico Federal Lands Council, Bebo Lee, has written to the BLM Acting Director and requested that he “rescind Instruction Memo No. 2003-275 and BLM Manuals 6310 and 6320”, and that he replace those documents with directions the lands under consideration meet the definitions articulated in the 1964 Wilderness Act. Lee also said the new policy should state that “no management changes will occur on any lands perceived as LWC until Congress acts on any new designations.”

We know how President Trump feels about fake news. I suspect he would have the same opinion of fake wilderness. Let’s hope his appointees at Interior take note, and rid us of this holdover Obama administration gift to the enviros.

Until next time, be a nuisance to the devil and don’t forget to check that cinch.

Frank DuBois was the NM Secretary of Agriculture from 1988 to 2003, is the author of a blog: The Westerner (www.thewesterner.blogspot. com) and is the founder of The DuBois Rodeo Scholarship and The DuBois Western Heritage Foundation

How Virus Surveillance & Civil Liberties Could Collide

BY RJ VOGT | LAW360.COM, EDITING BY KATHERINE RAUTENBERG

I

magine your phone buzzing with an alert: Someone who passed you at the grocery store has tested positive for COVID-19. Based on location data transmitted through a smart phone app, authorities believe the stranger exposed you to the coronavirus. You might be infected.

The alert directs you to self-quarantine for 14 days to prevent further spread of the deadly disease. In the app, a map of color-coded dots displays the population of your home town. You notice the dot associated with you, previously green, has turned to yellow — now everyone else with the app

knows you could be dangerous.

Whether the scenario sounds Orwellian or absolutely necessary could depend on your answer to a rhetorical question Dr. Anthony Fauci, director of the National Institute of Allergy and Infectious Diseases, recently posed during a live Snapchat interview.

“Do you give up a little liberty to get a little protection?” he said.

The answer seems to be yes in at least 23 countries, where dozens of “digital contact tracing” apps have already been downloaded more than 50 million times. Authorities in Australia, India, the United Kingdom and Italy are also deploying drones with video equipment and temperature sensors.

According to experts like

Fauci, such widespread public health surveillance is essential to containing the deadly coronavirus that’s killed more than 50,000 Americans and infected nearly three million people around the world.

But the devil is in the details for groups like the American Civil Liberties Union and Amnesty International.

For example, in an April 8 report, the ACLU said engineers and tech experts agree that cellphone location data cannot accurately identify contacts within six feet, the generally accepted radius of COVID-19 transmission. The group noted, however, that such data could be accurate enough to place a person near a “bank, bar, mosque, clinic or other privacy-sensitive location.”

“Location data contains an enormously invasive and personal set of information about each of us, with the potential to reveal such things as people’s social, sexual, religious and political associations,” the ACLU report states. “The potential for invasions of privacy, abuse and stigmatization is enormous.”

Michael Kleinman, director of Amnesty International’s Silicon Valley initiative, shared a similar sentiment during an April 2 workshop on surveillance and human rights.

“There is an understandable desire to marshal all tools that are at our disposal to help confront the pandemic,” he said.

“Yet the country’s efforts to contain the virus must not be used as an excuse to create a greatly expanded and more intrusive digital surveillance system.”

Because U.S. health agen-

cies and big technology companies are still developing the public-private partnerships necessary to enable digital contact tracing, it remains to be seen whether app-based monitoring or drone usage will be challenged in court as a violation of Fourth Amendment rights to be free from unlawful search and seizure.

But considering the rash of constitutional litigation already filed by churches and other groups over social distancing orders, legal experts say it’s only a matter of time before public health surveillance is tested in court.

There will be judicial review, but the response will depend on the nature of the surveillance.

ERIC POSNER law professor University of Chicago “I think, definitely, there will be cases,” said Eric Posner, a law professor at the University of Chicago. “There will be judicial review, but the response will depend on the nature of the surveillance.”

He noted the precedent set

by Jacobson vs. Massachusetts https://www.law360.com/images/lexis_advance/kb-icon-red. png, a 1905 case in which the U.S. Supreme Court upheld a state’s authority to enforce compulsory smallpox vaccination laws. In a 7 to 2 majority opinion, Justice John Marshall Harlan wrote that liberty is not “an absolute right in each person to be, in all times and in all circumstances, wholly free from restraint.”

“Vaccinating someone against their will is pretty invasive,” Posner noted. “To violate

the Fourth Amendment during a pandemic, you’d need to do something that’s even more extreme than that.”

Traditionally, public health surveillance hasn’t triggered data privacy debate. Previous contact tracing efforts relied on manually interviewing infected persons about their movements and then notifying those who may have crossed their paths.

But because COVID-19 spreads rapidly through unknowing asymptomatic carriers, many scientists believe that harnessing big data and 21st-century technologies is the only way to control contagion.

In the words of a widely cited March 31 Science article by four Oxford University researchers, “viral spread is too fast to be contained by manual contact tracing, but could be controlled if this process was faster, more efficient and happened at scale.”

“A contact-tracing app which builds a memory of proximity contacts and immediately notifies contacts of positive cases can achieve epidemic control if used by enough people,” they added.

That type of system is already in place in South Korea, where the government publishes online the movements people made before being diagnosed with the virus. Surveillance via GPS phone tracking, records from credit card purchases and store security camera footage has helped authorities keep infections to a fraction of the levels seen in the U.S. Although the detailed reporting of people’s movements continued on page nine

May 15, 2020

Livestock Market Digest

Page 7 521 West Second St. • Portales, NM 88130

REAL ESTATE GUIDE Scott Land co.

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Located along I40 between Albuquerque, NM and Amarillo, TX. A beautiful, new, custom built home is situated at the headquarters along with a wellbuilt 150 X 115 shop (80 x 150 enclosed and heated), outdoor arena, horse barns, pens & other improvements. The ranch is well watered and has very good to excellent fence.

■ WEST HAYDEN RANCH – Union/Harding Counties, NM – 9,670.76 ac. +/- (8,350.76 ac. +/- Deeded, 1,000 lease/purchase acres, 320 ac. +/- NM State Lease) of really good ranch land, well watered by a large spring, mills & subs, on pvmt., home, barns & 2 sets of pens.

■ ELK CANYON RANCH – Harding County, NM - Another “hunter’s paradise” listed by Scott Land Company, LLC along w/the Elk Ridge Ranch, great opportunity for livestock/hunting/recreation, 2,240 ac. +/-, well watered w/good fences. Located just west of the West Hayden Ranch.

■ ELK RIDGE RANCH – Capulin, NM area, 100hd. +/- herd of Elk seen on property from time-to-time, 5,520 ac. +/- w/nice home, barns & pens, watered by wells & live water, no outside access through the property. Brochure being prepared!

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Please view our website for details on these properties, choice TX, NM & CO ranches (large & small), choice ranches in the high rainfall areas of OK, irr./dryland/CRP & commercial properties. We need your listings on any types of ag properties in TX., NM, OK & CO.

SUMNER LAKE, State Road 203, River Ranches Estates, River Ranch Road lots (at intersection with 203) $18,900 each.

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MAGDALENA, 47 Angus Loop, 3bd/2ba home on 11.04 acres.

Horse barn and corral. Beautiful views of Magdalena Mountain. $180,000

Qualifying Broker: A.H. (Jack) Merrick 575-760-7521 www.buenavista-nm.com

521 West Second St. • Portales, NM 88130

SOCORRO 575-226-0671 or 575-226-0672 fax PLAZA REALTY On the Vista PlazaRealty Buena

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Qualifying Broker

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575-799-9600 Direct 575.935.9680 Office 575.935.9680 Fax coletta@plateautel.net www.clovisrealestatesales.com

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AG LOANS AGLAND LAND LOANS AsLow LowAsAs 3% As 4.5% OPWKCAP 2.9% OPWKCAP 2.9%

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1421 N. Ave O, Portales, NM Nice comfortable 3 bedroom, 3 bath country home on 17.9 acres with city water and sewer, lays next to the Portales city limits. HVAC plus pellet stove in living room, garage has space for woodworking or craft hobbies.

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FENCE LAKE, 295 Pine Hill Road, 2bd/3ba home on 60 acres, corrals, outbuildings. $295,000

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Call Buena Vista Realty at 575-226-0671 or the listing agent Lori Bohm 575-760-9847, or Melody Sandberg 575-825-1291.

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THE 100 RANCH –you Iflooking you are a quality cattlesuitable ranchthe then the 100iscattle Ranch is just you The 100 THE 100 RANCH – Ifare are looking for a for quality cattle ranch then 100 Ranch just what you what need.

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100 include Ranch is THE 100 RANCH – If you for alooking quality cattle ranch for a registered operation.

Improvements iswell aRanch scenic, well improved cattleThe ranch views of the nearby Sacramento and Jicarilla Mountains.

Located a Ranch scenic, improved cattle ranch with stunning viewsstunning of Sacramento and Jicarilla Mountains.

Located approximately Price: $2,500,000 Call for then the 100 is just what you need.

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TheThe 100 Ranch has acres, 30,680 federal BLM lease acres 9,208 NM approximately 7,000 acres ofis private land gated andState locked.7,000 The price includes all ofranch equipment.

100 Ranch a customwith designed rock home, guest house, Quonset Barn, hadhad justjust two owners 1940s. isisranch one with Mossy Oak Properties NMRanch Ranch Luxury,LLC. LLC. lease acres.

The maximum grazing capacity ofItItthe is alisted has two ownerssince sincethe the 1940s. one of of a kind. Co-listed Mossy Oak Properties NM &&Luxury, barns, and a good set of pipe pens. Partitioned into two larger atPrice: 1,200 A.U.Y.L. The ranch is operational, ready turnwebsite: out www.ranchesnm.com Price:$11,000,000 $9,995,000 Call for forfully brochure or view view ontomy my website: www.ranchesnm.com Call aa brochure or on pastures and two smaller pastures. Acreage includes 2,185 with no start up costs.

Watered with six wells and an extensive COCHISE RANCH – Ranch property located just west of Roswell, NMalong alongand andadjacent adjacent toU.S. U.S. Highway 70/380 Ruidoso, COCHISE RANCH – Ranch property located just west of Roswell, NM Highway 70/380 toto Ruidoso, deeded acres and 320 NMtoState Lease acres.

The Blackwater pipeline system.

Ample big game hunting on the ranch to include NM.Comprised Comprisedofof6,607 6,607deeded deededacres acresand and8080acres acresofofNM NMState StateLease Lease acres.

Water is provided by three solar wells and pipelines.

NM. acres.

Water is provided by three solar wells and pipelines.

Draw Ranch is adjacent to the Cochise Ranch, the two may be elk,Fenced mule deer, antelope and oryx.and Access the public landfor is registered intoseveral severalpastures pastures smallto traps suitable cattle operation.

Improvements include setsofofpens, Fenced into and small traps suitable for a aregistered cattle operation.

Improvements sets $1,350,000include Call fortwo atwo brochure orpens, combined very easily. Price: limited with approximately 7,000$2,500,000 acres of private land gated and or view shop, and hay barn.

Price: Call for a brochure website: www.ranchesnm.com shop, and hay barn. Price: $2,500,000 Call for a brochure or view onon mymy website: www.ranchesnm.com view on my website: www.ranchesnm.com locked. The price includes all ranch vehicles and equipment.

BLACKWATER DRAW RANCH –Nice Nicethe well improved ranchproperty propertylocated locatedjust just1515minutes minutesfrom fromdowntown downtownRoswell, Roswell,NM NM BLACKWATER well improved The 100 Ranch hasDRAW had just RANCH two owners–since 1940s.

It is ranch KELLEY PECAN ORCHARD –home, 10.2guest acres with over 230 Barn, along andsouth south U.S. Highway 70/380.

Improvements include custom designed rockhome, guesthouse, house, Quonset Barn, along ofofU.S. 70/380.

Improvements a acustom designed rock Quonset one of aand kind.

Co-listed withHighway Mossy Oak Properties NM Ranch &include mature and producing pecan pastures. trees located just west of Roswell, barns,LLC. andaPrice: agood good pipepens. pens.

Partitioned into twolarger largerpastures pastures twosmaller smaller Acreage includes 2,185deeded deeded barns, and setsetofofpipe Partitioned into and two pastures. Acreage includes 2,185 $11,000,000 Call for a brochure or two view on Luxury, NM.isArtesian water rights with one wellthe supplies irrigation acres and 320 NM State Lease acres.

The Blackwater Draw Ranch adjacent to the Cochise Ranch, two may combined acres and 320 NM State Lease acres. The Blackwater Draw Ranch is adjacent to the Cochise Ranch, the two may bebecombined my website: www.ranchesnm.com water through a newly installed sprinkler system to the orchard. veryeasily. easily.Price: Price:$1,350,000 $1,350,000Call Callforfora abrochure brochureororview viewononmymy website: www.ranchesnm.com very website: www.ranchesnm.com include a large 5,400 square foot two story coloCOCHISE RANCH – Ranch property located justacres west with of over 230Improvements KELLEY PECAN ORCHARD – 10.2 mature producing pecan treeslocated locatedjust westofof Roswell, KELLEY PECAN ORCHARD – 10.2 acres with over 230 nial mature pecan west Roswell, style producing residence that hastrees been featured injust Southern Living Roswell, NM along and adjacent to U.S. Highway 70/380 to NM. Artesian Artesianwater waterrights rightswith withone onewell wellsupplies suppliesirrigation irrigation water through a newly installed sprinkler system tothethe NM. water through a newly installed sprinkler system to Magazine. This property is one of a kind. Call for an appointment Ruidoso, NM.Improvements Comprised of 6,607 acres and 80square acres foot two orchard. includedeeded large 5,400 story colonial style residence thathas has beenfeatured featured orchard.

Improvements include a alarge 5,400 square foot two story colonial style residence that been Price: $975,000 Call for ain in to take a look or for a color brochure. of NM State Lease acres.

Water This is provided by isthree solar Southern LivingMagazine.

Magazine. property oneof ofa awells kind.Call Call appointment totake takea www.ranchesnm.com alook lookororforfora acolor colorbrochure. brochure.

Southern Living This property is one kind. forforananappointment towebsite: brochure or view on my andPrice: pipelines.

FencedCall into several pastures and small traps $975,000 brochure view website:www.ranchesnm.com www.ranchesnm.com Price: $975,000 Call forfora abrochure ororview ononmymywebsite: CONTACT CONTACT

BarEstate M Bar M RealEstate Real

Scott McNally, Qualifying Broker ScottMcNally, McNally, Qualifying Broker Scott Qualifying Broker Bar M Real Estate, LLC P.O. Box 428, Roswell, NM 88202 Roswell, NM 88202 Roswell, NM 88202 Office: 575-622-5867 Cell: 575-420-1237 Office:575-622-5867 575-622-5867 • Cell: 575-420-1237 Office: • Cell: 575-420-1237 www.ranchesnm.com

www.ranchesnm.com www.ranchesnm.com

O’NEILL O’NEILL LAND, LAND,llc llc P.O.P.O. BoxBox 145, Cimarron, 575/376-2341 • Fax: 575/376-2347 145, Cimarron,NM NM87714 87714 • • 575/376-2341 • Fax: 575/376-2347 land@swranches.com www.swranches.com land@swranches.com •• www.swranches.com

WAGON MOUND MOUND RANCH, RANCH, Mora/ Mora/ WAGON Harding Counties, Counties, NM. NM. 8,880.80 8,880.80 +/+/Harding Total Acres, Acres,aasubstantial substantialholding holdingwith with Total good good mix mix of ofgrazing grazingland landand andbroken broken country offrim riminto intoCanadian Canadian River. country off River.

Has Has modern located modern water water system system located 17 miles 17 east ofMound WagonoffMound off eastmiles of Wagon pavement pavement then 3 miles on Two county then 3 miles on county road. bedroad.

Two bedroom historic house, room historic house, once a stage stop. once a stage stop.

Wildlifemule include Wildlife include antelope, deer antelope, mule deer and some elk. and some elk. $2,710,000 $2,440,000 $2,710,000 $2,440,000 FRENCH TRACT FARM, 491.55 +/FRENCH TRACT FARM, 491.55 deeded acres, Colfax County, NM +/two deeded acres,gated Colfaxpipe, County, two pivots, some 371 NM irrigation pivots, some pipe, irri-to shares in AVID,gated House, barn,371 close gation barn, exit 419shares off I25inonAVID, HWYHouse, 58. All in one close to exit parcel 419 offwith I25 access on HWYon58. contiguous all All in $700,000 one contiguous parcel with sides. access on all sides. $700,000 RATON MILLION DOLLAR VIEW, RATON MILLION DOLLAR Colfax County, NM. 97.68 +/- VIEW, deeded Colfax NM. 97.68 +/- deedacres inCounty, 2 parcels with excellent home, ed 2 parcels withmillion excellent bigacres shop,inwildlife, a true dol-

$489,000.

Also listed with the house home, big shop, wildlife, a true million dollar view at the of a private road. and one parcel for end $375,000 $489,000. listed withCounty, the house MIAMI 20 Also ACRES, Colfax NM and one 2,715 parcel sqft for $375,000 quality adobe home, barn, MIAMI 20fruit ACRES, Colfax County, NM grounds, trees and mature trees. quality 2,715 sqft adobe barn, Extremely private setting.home, REDUCED grounds, fruit andsee. mature trees. $355,000.

Thistrees is a must Also listed Extremely setting. with same private house with 10 +/-REDUCED deeded $355,000.

This is a must see. Also listed acres for $310,000 with same house with 10 +/- deeded MAXWELL 19.50 ACRES, Colfax acres for $310,000 County, NM quality extensive remodMAXWELL 19.50 ACRES, Colfax eled two bedroom, one bathroom County, NM quality extensive remodhome with water rights, outbuildings eled two bedroom, one bathroom home for livestock in NE outbuildings NM. Great south with water rights, forfacliveing porch for sipping iced tea cooling stock in NE NM. Great south facing porch offsipping at 6,000 ft elevation.

Would for iced tea cooling off atmake 6,000 summer getaway winter ski ftgreat elevation.

Would makeand great summer getaway and winter ski base. $270,000 base. $270,000

C O N TR A C TT AC T RIN ND CEON G P

P E N D IN G

MORA ACRES, 12 12miles miles MORACOUNTY COUNTY160 160 +/+/- ACRES, south Mound,remote, remote,excelexcelsoutheast eastof of Wagon Wagon Mound, lent mix ofof sub subirrigated irrigated lentsolar solar well well good good mix $154,000 lar view at the end of a private road. and andrange. range.Small Small cabin. cabin. $154,000

Page 8

Livestock Market Digest

Collectors Corner Absentee “Max Bids” What You Don’t Know Could Cost You The earliest bid should win! A max bid left before the auction starts should have preference!

The absentee bidder thinks, “I put my bid in first, I should win at that amount or below!” We agree with you—but what if…

Auctions have been around for about 2,000 years. During said time, a lot of laws and standards of practices have been tested and re-tested. Today, there is a long precedence of contract law and standards auctioneers adhere to.

Online auctions have been around since the 1990s. During this time, it has become increasingly convenient for bidders to leave max bids at their leisure and let the platform bid on their behalf. Leaving a max bid ahead of time works out to the buyers advantage most of the time if

an item sells for what they bid or less. But once in a while, in a live auction format, the item will sell to someone else for the same amount as someone’s max bid left before the auction.

Wait! How can that happen if I bid first!?

The simple answer given is that it wasn’t your turn to bid.

For example, if a max bid is left at $500, but you are currently winning the bid at $475, and the auctioneer is now asking for $500 from another bidder (often not knowing the amount of the max bid you left). Then another bidder bids $500. It wasn’t your turn and you don’t bid against yourself in a live auction. Some don’t agree with how this is handled. So this rare occurrence is the subject we address today.

First off, it is important to understand the differences in the types of auction formats.

There are online timed only auctions (Ebay type auctions are examples). This format uses no auctioneer and the computer software handles bids. Then there are live auctions (an auction with an auctioneer, a live crowd and any one, or possibly several, internet platform(s).

(There are other formats like silent auctions but here we will address the online only and live simulcast variants.)

In an online time auction format (no auctioneer), the lot(s) are open for a specific time (usually from 3 to 14 days).

There is a specific starting and ending time designated. It’s a race against the clock to see who has the highest bid when the time expires. Preference is given by the software to the first in time bidder in this format. Meaning the computer will keep the first highest max bidder as the winner until his bid is exceeded. Example; if a max bid of $500 is left and someone subsequently places another bid of $500, the computer will not accept the second bid, it will put the first bidder in at $500 and tell the second bidder they have been outbid and need to bid again. In this scenario, no acceptance of the second bidder’s offer was ever acknowledged by the system. Therefor, no agreement to purchase at that price was created between the potential bidder and the seller because the bid was automatically rejected in favor of the first bidder.

In a live auction with an auctioneer (which can also be simulcast online with todays technology), it is different. In this format a lot is open for bidding when the auctioneer announces it open for bidding and closes when he deems the highest bid has been achieved and he says SOLD or drops the gavel (this whole process takes about 30 seconds to one minute on average). In this type of auction a bid is accepted when the auctioneer acknowledges it. He is the conductor. Once acknowledged, an agreement is created between the auctioneer (seller’s representative) and the bidder (buyer). But wait! It’s been online for 2 weeks!

As a matter of convenience to bidders, most live auctions today make pre-bidding available online. With regards to

May 15, 2020 max bids left absentee (online or otherwise) before an auction starts, we must remember they are offers to bid up to a certain amount on behalf of a bidder, the same as if that bidder was there in person, bidding against the other bidders.

A comment received was, “unless an auctioneer is going to observe an absentee bid up to and INCLUDING the max dollar amount, then, quite frankly, there’s no use submitting max bids.” Hmmm… I think some confuse the timed auction format with the live bidding format.

Think of it this way. In the live bidding format, pre-bidding is made available as a convenience for bidders who find it otherwise difficult to attend the live auction (when the lots are actually open for bidding with an auctioneer acting as the conductor). The ability to leave an absentee max bid ahead of time on a platform is the same thing as if a bidder sent someone to the auction on his behalf to bid up to a certain amount on an item.

If we give the absentee bidder preference for being first to bid (when they are actually just taking advantage of a convenience) then in order to play fair with all other parties, do we need to change how we deal other bidders? Does the phone bidder call in a week ahead of time and say, I am going to bid up to $500 on this particular lot next week, I just wanted to let you know ahead of time so I get priority up to and including that amount. Do the folks who plan to attend and bid live come by a week before and give the auctioneer a list of items they plan to bid on and the amount they will go up to in order to get priority up to and including their max bid amount? This would seem only fair—right?

Do auctioneers need this list of people who stopped by and the date which they did in order to claim their priority up to and including a certain amount and then also look at the back end of the online software on each internet platform to see the time and date stamp of absentee bids left on the various online platforms? This way, when he gets to a certain number, he can make sure the first person who made the intent known to him last week gets the bid. Hmmm…

If this is the case, why not just have a timed auction and let the

computer figure all that out.

Conversely, something often heard from the live crowd is, “I am here in person, I made the effort to be here. I should get preference over the online person.” They also want preferential treatment! Everyone wants things their way! But auctioneers understand it is not always feasible for the absentee bidder to attend. Therefore they make pre-bidding available online, by phone or email as a convenience to potential bidders. But does it deserve priority? Do those who show up deserve priority? When you understand the difference in the formats, neither deserve preference at the live auction, all bidders start off together once the auctioneer opens the lot for bidding.

Alas! There is another way max bids could be handled if we want our max bid amount protected. We could use our max bid as the starting point of the live auction. Now that is a different story. If a bidder desires their max bid to automatically be the new high bid, let the auction house know. Most will accommodate you. But generally bidders do not want this. They want to pay as little as necessary to win the item.

If you want the auctioneer to start with your max bid though, so be it. But you will probably pay more overall for the items you win.

But if you want your max bid left during pre-bidding to be an offer to pay up to that amount during live bidding and you want to get it for as little as it takes to outbid the underbidder, remember the platform is standing in on your behalf just like you were there bidding in real time and that is a convenience for you. Not a way to gain priority before the auction starts. Most of the time, max bids will work to your advantage, but also be prepared to miss out on an item once in a while due to the way the bidding falls during the live bidding.

If there is a particular item you want badly, leave a higher max bid, or tell the auctioneer to jump the bidding to your max bid amount automatically.

In the long run however, you will save money on items won by using your max bid as an offer to go up to a certain amount and not as a starting point.

Most auctioneers are fair and try to acknowledge the first person (whether online or in person) who bids the amount they are asking for. But also remember that in live/simulcast auctions you do not typically raise your own bids and the option of leaving max bids ahead of time is a convenience. It is the bidder’s responsibility to understand how max bids are handled. If they don’t agree with it, they can always bid live.

This can usually be done in person or by using the live online bidding option (watching it in real time on your device).

In our experience, there is generally one happy person (the winning bidder) and others not so happy (anyone else who didn’t win). But as long as auctioneers are consistent with their practices and follow basic contact law and standards of practice, it’s all you can ask for.

Please keep in mind, auctions are fun! Learn the nuances and use them to the best of your advantage! And good luck bidding!

Jim and Bobbi Jeen Olson © 2020

May 15, 2020

Livestock Market Digest

Page 9

Namibia Becomes First African Nation to Export Beef to United States

BY PALASH GHOSH @GOOCH700 / IBTIMES.COM

N

amibia, a country in southwestern Africa about the size of Texas, recently became the first African country to export beef to the U.S. In late February, Namibia’s state-owned Meatco sent 25 tons of beef to Philadelphia, after nearly two decades of arguments over safety regulations and logistics.

“In 2002 and again in 2005, the government of Namibia initiated negotiations on the export of meat [beef] products to the United States, with the intention to exporting boneless raw beef products such as primal cuts, chuck, blade, and beef trimming,” said Namibia’s Deputy Prime Minister and Minister of International Relations and Cooperation Netumbo Nandi-Ndaitwah. “Today, 18-years

later, we are able to finally export meat to the lucrative and big U.S. market. This signifies how ties between Namibia and the United States of America continues to be strengthened through different bilateral agreements.”

Namibia is preparing to export 860 tons of beef to the U.S. this year, then increase the deliveries to 5,000 tons by 2025.

The average American eats 120 kgs [265 pounds] of meat each year, making the U.S. the world’s biggest meat consumer.

“It was therefore an ambitious undertaking for Namibia… competing for a share in a [U.S.] market claimed and defended by the developed beef producing countries of the world,” Nandi-Ndaitwah added.

“The significance of exports of Namibian beef is more than just adding yet another high-quality ingredient to the American people’s plate; it marks the success of two countries in the realization

of win-win cooperation,” said Namibian Agriculture Minister Alpheus Naruseb.

In 2019, Namibia exported about 12,400 metric tons of meat to Norway, Britain, the European Union and China.

“Namibia will benefit economically from tapping into the largest consumer market with purchasing power of $13 trillion, and U.S. consumers will benefit from access to Namibia’s high-quality, free-range, grassfed beef,” said U.S. ambassador to Namibia, Lisa Johnson.

While agriculture only contributes about five percent to Namibia’s entire economy, farming – including the raising of cattle – accounts for almost two-thirds of the population’s income.

Namibia beef exports to the U.S. are duty-free under terms of the African Growth and Opportunity Act. Namibia’s livestock industry is valued at about $254 million

annually, with Meatco owning about 50 percent of the market.

While Namibia has been engulfed in recession the past three years, the International Monetary Fund projects the economy will grow this year by 1.6 percent -- due to the acceleration of mining production and drought mitigation.

In 2017, 2018 and 2019, Namibia’s gross domestic product growth showed losses of 0.9 percent, 0.1 percent and 0.2 percent, respectively.

However, IMF also warned that its growth projection could be reduced due to a potential fall in global growth as a result of the coronavirus.

IMF recommended that Namibia take steps to stabilize its public debt over time and enact reforms to support growth and revive structural reforms to increase employment.

“In the absence of structural reforms, growth would strength-

SURVEILLANCE has led to several human rights complaints — Choi Young-ae, chair of the National Human Rights Commission of Korea, has warned that the “excessive disclosure of private information” could cause people with symptoms to avoid testing — public outrage has been nearly nonexistent.

All the measures are authorized under a law passed in 2009 to respond to the country’s MERS outbreak, and the widespread surveillance has enabled far more economic activity than in the U.S., where surveillance has been comparatively minimal.

That could soon change, however.

On April 10, American tech giants Apple and Google announced a joint effort to enable government contact-tracing via the Bluetooth technology on their devices. In their announcements, the companies emphasized that “user privacy and security” would be central to the project, which would have an opt-in component and could roll out its initial stages in May. Posner said such surveillance, though certainly intrusive, may be preferable to the stay-at-home orders that most Americans have experienced over the past month.

“While it would be a restriction on liberties, surveillance might allow a relaxation of the more obtrusive restrictions currently in place,” he said.

But for Mason Marks, a Gonzaga University law professor, the assurances of Big Tech do little to assuage fears of overreach.

“Historically, we have seen Big Tech firms abusing and misusing the data they collect for purposes other than those officially stated by them,” he said, noting Facebook’s Cambridge Analytica scandal as one example. “Moreover, Big Tech is likely to find more uses and to derive more inferences once new analytical tools are available in the future.”

I don’t see a world in which we can deal with this without a government being more intrusive.

ALAN ROZENSHTEIN

en only gradually over the medium term,” the IMF stated.

continued from page six

law professor University of Minnesota In late April, Marks and Ido Kilovaty, a law professor at the University of Tulsa, published an op-ed in The Hill calling on federal and state lawmakers to enact a “right to digital self defense” ensuring Americans can freely use anonymity, privacy and cybersecurity tools to shield themselves from data collection.

They noted that public-private partnerships, like the one Apple and Google are reportedly working on, circumvent protections in the Bill of Rights because the tech companies conduct the surveillance — not the government itself.

“If Big Tech moves forward with their network of surveillance, and in the absence of state action, the Fourth Amendment might not apply to the unreasonable uses of such surveillance,” the pair wrote in an email to Law360.

So far, White House transparency about what surveillance measures the government is working on has been limited.

After multiple media outlets reported that Jared Kushner, a White House senior adviser and President Donald Trump’s sonin-law, had contacted a range of health and technology companies about creating a national coronavirus surveillance system, three lawmakers expressed privacy concerns in an April 10 letter.

“This growing health pandemic further exacerbates increasing concerns about the role large tech firms are starting to play in our health care sector,” wrote U.S. Senators Mark R. Warner, D-Va., and Richard Blumenthal, D-Conn., along with U.S. Rep. Anna Eshoo, D-Calif. “These partnerships have bolstered the platforms’ ability to exploit consumer data and leverage their hold on data into nascent markets such as health analytics.”

The legislators asked eight questions in the letter, seeking, among other things, information on what companies Kushner contacted, whether the administration would commit to stopping the data collection when the emergency ends, and what measures the administra-

tion was taking to prevent discriminatory outcomes on marginalized groups.

According to a spokesperson for Blumenthal, Kushner has not responded. But clear answers will be hard to come by in the absence of concrete proposals, according Alan Rozenshtein, a law professor at the University of Minnesota who previously advised the National Security Division of the U.S. Department of Justice.

But Rozenshtein noted that the response to the September 11, 2001, terrorist attacks could be indicative of what lies ahead for Americans.

He said measures like robust contact tracing programs could raise similar constitutional concerns as the National Security Agency’s bulk collection of telephone metadata via the USA Patriot Act. Nevertheless, he noted that judges have tended to back executive authority, especially in times of crisis.

“I don’t think courts will stand in the way,” he added.

“Pandemics are key drivers of government expansion — I

don’t see a world in which we can deal with this without a government being more intrusive.”

Joe Vieira

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Michael Machado 209-495-9208 Thomas Bert

209-605-3866

CJ Brantley

209-596-0139

Tony Luis

209-609-6455

Page 10

Livestock Market Digest

The View FROM THE BACK SIDE

Vanishing Rights

BY BARRY DENTON

L

et me count the ways.

This Coronavirus Pandemic has been the perfect vehicle to show us that we do not have any rights that politicians do not allow us to have.

While I was impressed with the Trump Administration’s response to the pandemic, it did enable a few power hungry governors and mayors to go over-

board destroying peoples’ rights in a hurry.

Stop and think about it, the American people were asked to do something unprecedented and voluntarily shut down their country, which they did admirably. However, in some states they were rewarded by a hostile governor demanding even more from them. It’s obvious already that the extreme’s the liberal governors were calling for were

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completely unnecessary and unconstitutional.

For instance on Easter Sunday, a Kentucky church defied Coronavirus orders from Democrat Governor Andy Beshear.

Their in person service was met with a large police presence, including spilled boxes of nails at the parking lot entrance. Can you imagine not being allowed to attend church in America?

Also, just a few days later a federal judge ruled that Greg Fischer the Democrat mayor of Louisville’s stunning ban on drive-in services was unconstitutional. The pastor of On Fire Christian Church sued. Governor Beshear’s statewide plan to order people to quarantine if they attended church was bashed by Republican Senators Rand Paul and Mitch McConnell.

In Louisiana, Pastor Tony Spell of Life Tabernacle Church near Baton Rouge said, “They would rather come to church and worship like free people than live like prisoners in their own homes.”

Louisiana Democrat Governor John Bel Edwards had a ban on gatherings of ten or more people, which church spokesman Joe Long argued that the ban violated the right to religious freedom protected by the U.S. Constitution.

In Texas, Republican Governor Greg Abbott issued a special executive order declaring that attending worship services were essential for his state. Grant-

May 15, 2020 ed, it will be different in each state. In Malibu, California, a lone paddle boarder was arrested with no one else around, by sheriff deputies for violating the statewide “stay at home” order.

He was released and could have to pay up to $1000 fine.

This has to be the most absurd incident yet. To me the one that reeks of Communism, is that you are told to use hotlines and other online forms provided by your local governments to report neighbors who don’t obey.

As an American citizen, how could you ever bring yourself to do such a thing as report your neighbor?

Those are all ridiculous occurrences, but which side is being more ridiculous? Yes, I realize that we have to take a few precautions with the out break of the Coronavirus, but where does it end?

What is the point of being safe if the government can take away your livelihood because a few people are sick? Not only have the areas with democrats in charge gone overboard with new rules and enforcement, but they seem to like it. Let’s hope, they are never again in charge of the entire country. I can just see them shutting the entire country down for virtually nothing.

On a serious note, I think the Coronavirus scare has shown just how generous and concerned this country is for helping it’s fellow man. However, many have given up their livelihood to help others recov-

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tional surface waters via groundwater.”

This argument was opposed by the justices when they concluded this position of EPA “… would open a loophole allowing easy evasion of the statutory provisions’ basic purposes, is neither persuasive nor reasonable.”

The Court believed EPA’s interpretation of the CWA is difficult to reconcile within the statute. The justices believed that so long as identifiable sources of pollutants can be identified, then a permit is required to discharge into a navigable water.

Undermining the stormwater exemption It does not take much to conclude that this determination by the U.S. Supreme Court undermines the agricultural stormwater runoff exemption. The Court did admit “Virtually all water, polluted or not, eventually makes its way to navigable water.” The Court also admitted as to groundwater sources and nonpoint source pollution, “Congress intended to leave substantial responsibility and autonomy to the States.”

The Opinion does discuss the fact that States have developed methods for regulating

er. I think that is a monumental sacrifice, which should not be asked of them.

We have never done this before in our country’s history and I think it was a bad precedent to start now. I will say that it is truly amazing what the Trump administration did accomplish in regard to logistics in getting the right items where they needed to go.

I truly hope that the way citizens were treated during this pandemic by the various governments is a disgrace. Why are sick people more important than working people? Yes, I think instituting some safety measures at the workplace would have been more advantageous. Tell me how this makes sense? In our local county we have about 250,000 people. Sixty six are sick with Coronavirus. Why are the other 249,034 people being punished? Why not isolate and care for the sick and let the others go to work?

The good news is that by the end of this week the Trump administration is coming out with guidelines for the states to resume business. Let’s hope everyone gets well and recovers.

I do thank all the brave doctors and nurses taking care of our Coronavirus patients.

Hopefully, we will see a booming economy very soon and no more pandemic. This is one time ranchers & farmers that we are lucky to be away from the bustling city life!

continued from page five

nonpoint source pollution. It discusses reports from Maine, California, and Oklahoma. It concluded state regulatory practices undermined the 9th Circuit’s broad interpretation of the statute.

The Supreme Court justices felt that EPA’s view was too extreme. The Supreme Court made law when it stated, “…when there is functional equivalent of a discharge. We think this phrase best captures in broad terms those circumstances in which Congress intended to require a federal permit.”

The Court believes time and distance are critical in determining a “functional equivalent” discharge. It uses this example: “Where a pipe ends a few feet from navigable waters and that pipe emits pollutants that travel those few feet through groundwater or over the beach, the permitting requirement clearly applies. If the pipe ends 50 miles from navigable waters and the pipe emits pollutants that travel with groundwater, mix with much other material, and end up in navigable waters only many years later, the permitting requirements likely do not apply”.

More litigation is what this creates!

May 15, 2020

Livestock Market Digest

Baxter BLACK ON THE EDGE OF COMMON SENSE www.baxterblack.com

Team Roping Handicap

T

he sport (passion, or affliction) of team roping experienced a terrific boom in popularity years ago with the creation of an association called United States Team Roping Championships (USTRC). It established a classification system based on the roper’s skill. It is comparable to

the handicapping system used in golf. The result is that ropers are able to compete with others of ‘equal ability’ therefore increasing their chances of winning. As a roper improves, his USTRC number increases.

Classifications begin at #1 which is defined as True Beginner. These ropers have trouble

controlling the rope and their horse at the same time. Inexperienced riders with little or no roping experience. And it runs up to #9 which is defined as National Finals Rodeo quality ropers.

I joined USTRC and applied for a number. After reading the classification description, I realized they didn’t go far enough. There are some handicaps, quirks and flaws that deserve special numbers.

I suggested these additions: #3/8 – One who can rope the dummy standing on a barrel, behind his back, between his legs, from the front seat and blindfolded, but couldn’t rope a live elk in an eight foot stock tank if his life depended on it. #.0025 – Ropers who have been at it several years yet

Page 11 seem to have no aptitude for the sport. Still don’t grasp basic concepts like nodding for the steer. #.5 – Those cowboys condemned to always ride green, spooky, maladjusted “in training” horses. Although they might be fairly good ropers, it never shows between the pitching, squeals and cheers from the crowd. #2 ¾ - Consistently poor ropers but so creative at inventing excuses that they deserve some credit. “Did you see how close that was? I had ‘em both, I saw. Then the loop must have snagged on a gum wrapper and it broke my concentration just as my horse switched leads, and in this humidity…blah…blah…blah…” #1/4 – Left-handers who rope right-handed. Easily

spotted by the slight hesitations, looks of confusion and facial tics. #1/8 – Left-handers who rope left-handed.

Heelers who spend their life trying to get in position. #4F – Usually mature ropers who suffer rotor cuff injuries, bursitis, tennis elbow, carpal tunnel syndrome or other maladies that result in unusual roping styles. Such as one swing, wince and toss it like they’re trying to get a booger off their finger. # 10+ - Poorly dressed cowboys, ridin’ scruffy horses needin’ a mane roachin’ and tail pullin’, carrying a rope that looks like it spent the winter holdin’ down tarps, bummin’ Copenhagen and wanting to sleep in yer trailer, who can use a

DOJ Asked to Investigate Beef Market

BY JACQUI FATKA | FEEDSTUFFS.COM

A

total of 23 state cattle organizations sent a letter to U.S. Attorney General William Barr April 20, requesting a formal investigation by the U.S. Department of Justice to identify and investigate any evidence of fraudulent business practices within the beef meatpacking industry.

The letter was prompted by extreme beef market volatility following the fire of a Tyson processing plant in August and the current cornonavirus crisis (COVID-19).

“Our members are facing economic and financial destruction during the current crisis, which is compounded by the extreme market shift following the fire in Holcomb, Kan., eight months ago,” said Missouri Cattlemen’s Assn. president Marvin Dieckman. “One segment of the industry is making unprecedented profits while the rest of us are counting pennies.

We cannot afford to wait another eight months for results of an

investigation. We need DOJ to open an investigation immediately.”

The 23 state cattle organizations made clear in the letter that these events have emphasized how volatile cattle producers are.

“The nature of previous and current concern in both situations is extreme market degradation to the producer segment quickly followed by sharp increases and unseasonal profitability to the packing segment through boxed beef prices,” penned the 23 state cattle organizations. “The repeat nature of these market reactions absolutely emphasizes how the production sector of the industry is exposed to the highest potential for risk with little-to-no leverage to change that risk position.”

Following the fire at Tyson’s Holcomb beef harvest plant in August, average cash fed cattle prices dropped $150 to 200 per head during the next five weeks.

During this same time, packing plants managed to maintain “pre-fire” harvest capacity and boxed beef values moved sharp-

ly higher.

“The outcomes – windfall profits for the beef packing industry while the production sector dealt with multi-year market-low prices for calves, yearlings, and fed cattle. We are now seeing that same type of price action repeated – only in a more extreme manner and during a time of crisis that includes logistical stressors on the nation’s food production and distribution system,” the letter said.

The day after the first COVID-19 diagnosis in the U.S. (January 22, 2020), the CME Live Cattle Futures April Contract closed at $126.775/ cwt. and negotiated fed steers traded at $124.17/cwt., according to the U.S. Department of Agriculture’s LMR Daily Direct Steer & Heifer Slaughter Cattle Summary 5-Area average.

USDA-LMR’s closing Choice boxed beef index for the week ending January 24, 2020, was $214.78/cwt. and the Select index closed at $212.17/cwt.

As of April 3, 2020, the CME live cattle futures April contract

had declined over 30% in price to close at $88.325/cwt. with the average fed steer trading at $111.28/cwt. as reported by the USDA-LMR Weekly Direct Steer & Heifer Slaughter Cattle Summary. Meanwhile, boxed beef for the week ending March 27, 2020, was $252.84/cwt. for Choice and $242.38/cwt. for Select.

While US Department of Agriculture (USDA) is still investigating subsequent to the fire and have added the current crisis to that investigation, the state cattle organizations collectively believe DOJ engagement is critical.

“We understand and acknowledge there is a pending USDA investigation. However, as our industry looks for clarity of business function moving forward, we believe the DOJ would be the appropriate agency to open an investigation and also support USDA in its investigation allowing this process to be concluded in a timely manner,” the letter stated. “This is of vital importance to the future of one of the largest sectors of

U.S. agriculture.”

According to Dieckman, both events continue the undue financial burden for all cattle producers within the production side of the beef cattle industry and in turn affect rural America short-term and longterm.

In addition to Missouri Cattlemen’s, the letter was signed

by Alabama Cattlemen’s Assn.; Arizona Cattle Growers’ Assn.; Arkansas Cattlemen’s Assn.; Georgia Cattlemen’s Assn.; Hawaii Cattlemen’s Council; Illinois Beef Assn.; Iowa Cattlemen’s Assn.; Michigan Cattlemen’s Assn.; Minnesota State Cattlemen’s Assn.; Mississippi Cattlemen’s Assn.; Montana Stockgrowers Assn.; North Carolina Cattlemen’s Assn.; North Dakota Stockmen’s Assn.; Ohio Cattlemen’s Assn.; Oregon Cattlemen’s Assn.; South Dakota Cattlemen’s Assn.; Tennessee Cattlemen’s Assn.; Utah Cattlemen’s Assn.; Washington Cattlemen’s Assn.; West Virginia Cattlemen’s Assn.; Wisconsin Cattlemen’s Assn., and Wyoming Stock Growers Assn.

Page 12

Livestock Market Digest

May 15, 2020

Supreme Court Dismisses First Major Gun Case in a Decade

BY BILL LUCIA, SENIOR REPORTER / ROUTEFIFTY.COM

I

n dismissing a dispute over now-repealed New York City handgun restrictions, the U.S. Supreme Court in late April avoided delving into thorny questions about how lower courts have been deciding whether state and local government firearm regulations are constitutional.

But a dissent by Justice Samuel Alito, which Justices Neil Gorsuch and Clarence Thomas signed onto, and a concurrence from Justice Brett Kavanaugh, indicate that at least four justices may have some level of interest in revisiting the nation’s Second Amendment legal doctrine.

There are a number of firearms-related cases pending be-

fore the court that could provide an opportunity for this.

“This is a nothing decision, this is a sidestep,” said Joseph Blocher, a law professor and co-director of the Center for Firearms Law at Duke University. “But it really does make it significant, what’s the next gun case that they take,” he added.

“It’s definitely not the end of the issue.”

At the center of New York State Rifle and Pistol Association Inc. v. City of New York were regulations the city originally put in place in 2001 that restricted how gun owners that held a specific type of handgun license could travel with their firearms.

With the city’s prior regulations, these “premises” license holders were allowed to have a handgun at their home or busi-

ness, but were only permitted to transport their weapons to seven gun ranges within the city limits, or in some cases to gun shops.

The court battle over these rules dates back in 2013 when three individual gun owners and the Rifle and Pistol Association filed a lawsuit in federal court arguing that the city’s rules infringed on their Second Amendment Rights and the Constitution’s Commerce Clause.

It was unconstitutional, they argued, that the city’s rules prevented lawful gun owners from traveling with their weapons to second homes or shooting ranges outside the city.

A district court in 2015 and the 2nd U.S. Circuit Court of Appeals in 2018 sided with New York in the case, allowing the city’s rules to stand. But then last January the U.S. Supreme

Court agreed to hear the case and, after that, the city changed course.

Although New York successfully defended its ordinance as a prudent and constitutional safety measure in lower courts, it revised the restrictions last year to permit handgun owners with premises licenses to travel to second homes and gun ranges outside the city.

New York state also passed a law that made the old version of the city’s ordinance illegal.

The city then argued that they’d given the gun owners and the Rifle and Pistol Association what they wanted and that the Supreme Court should declare the dispute it had been considering in the case “moot,” or effectively dead.

This is what the court did on Monday in a two-page unsigned

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opinion.

New York City Corporation Counsel James Johnson in a statement called the ruling “just right.”

“The only claims the petitioners ever brought no longer present a live case, because the challenged City rule no longer exists,” he said. “The Court’s resolution was supported by plain common sense, the facts, and the law. We are pleased with the Court’s decision.”

The gun owners and the Rifle and Pistol Association had argued to the high court that the reworked rule may still infringe on their rights and that even though they had not made any claim for damages in the case related to the old rule, the door was still open for them to do so.

But the justices in the majority said these issues could be addressed in further proceedings before lower courts.

A lawyer for the gun owners and the Rifle and Pistol Association, and the association itself, did not immediately respond to emailed requests for comment on Monday.

Big questions hung over the case about whether the court might use it to set a tighter framework for how lower courts go about deciding Second Amendment cases, and if that outcome would make it harder for states and localities to adopt certain gun regulations.

It was the first major firearms case to go before the court in about a decade, and since the court issued a pair of landmark Second Amendment rulings in District of Columbia v. Heller in 2008 and McDonald v. City of Chicago in 2010.

Taken together, those two previous rulings held that individual Americans have a right to keep and bear arms and that this must be respected under state and local laws. But the justices haven’t articulated a rigid methodology for how lower courts should review legal challenges under these precedents, leaving this to lower courts.

In his dissenting opinion, Alito raised concerns about how the lower courts went about evaluating the New York restrictions. “Although the courts below claimed to apply heightened scrutiny, there was nothing heightened about what they did,” he wrote.

He said New York’s original ordinance violated the Second Amendment and “burdened the very right recognized in Heller.”

“We are told that the mode of review in this case is representative of the way Heller has been treated in the lower courts.

If that is true, there is cause for concern,” Alito wrote.

Alito also outlined why he believed that the court erred in declaring the case moot and said the gun owners and the Rifle and Pistol Association still have valid claims about the limits the revised rule leaves in place on how licensees can move about with their weapons.

In his concurring opinion, Kavanaugh said that he shared Alito’s concern that some federal and state courts “may not be properly applying Heller and McDonald.”

“The Court should address that issue soon, perhaps in one of the several Second Amendment cases with petitions for certiorari now pending before the Court,” Kavanaugh added.