The money raised from the annual Arizona Big Game Super Raffle of hunt permit-tags donated to hunting groups by the Arizona Game & Fish Commission is required by law to be used for wildlife habitat improvements. But some of the money is being spent to subsidize ranchers who are permitted to graze cattle on public land managed by the U.S. Forest Service and Bureau of Land Management (BLM), where most of the state’s wildlife habitat is located.
The Commission was authorized to donate up to two hunt permit tags for each of the state’s big game species on a trial basis in 1983 when the Arizona Legislature passed HB 2064. The tags had to be given to nonprofit wildlife conservation organizations that didn’t engage in lobbying activities. In other words – hunter groups. The organizations could auction or raffle off the tags and the proceeds had to be used for “wildlife management” in Arizona. The Legislature made the program permanent in 1986.
The Commission subsequently promulgated official rules for the donated tags in AAC R12-4-120. They require the hunter groups to transfer the annual proceeds generated from the donated tags to the Game & Fish Department for deposit in the program’s account. The Department must then “coordinate” with the organizations to approve funding for projects that will benefit the big game species “for which the tag was issued.”
This sounds innocuous enough, but the use of the funds was subsequently politicized. It started in 1989 when the Legislature passed HB 2158, which established the Big Game Ranching Study Committee. This seven-member committee was tasked with studying the “feasibility of establishing a program for ranchers and landowners to recover costs associated with big game on their property.” It was created in response to complaints from ranchers that the state’s growing elk herd was reducing the forage available for their cattle on public land, and that elk sometimes damaged their private land.
The Committee submitted its report in December 1989 and it included nine recommendations they had agreed upon. But it also included seven controversial recommendations proposed by the Committee’s ranchers that weren’t agreed to by all of the committee’s members. They included:
That the Game and Fish Department be held accountable, in the law, for any adverse effects on the livestock industry, whether on public or private land, caused by the state’s wildlife populations.
The Committee’s report didn’t result in any significant new legislation, but it did help motivate the Game & Fish Department to get friendlier with Arizona’s ranchers. Subsequently, in 1992 the Game & Fish Commission authorized the creation of an Arizona Elk Habitat Partnership Steering Committee to develop a program to “minimize conflicts between elk and other habitat users,” since elk compete with cattle for herbaceous forage. This resulted in the creation of regional partnership subcommittees around the state to try and create diverse working groups to improve local elk habitat. Agency employees were designated as administrative support staff for the committees, and possible project funding partners were also invited to the meetings. Then, starting in 1994, the local subcommittees were tasked with proposing wildlife habitat improvement projects to the statewide partnership committee that could receive cost-share grants from the donated big game permit-tag money.
By 1996, nearly $325,000 in donated big game tag money had been approved for 31 projects to improve habitat for elk, deer, and pronghorn antelope. Also, the Commission dropped the word elk from the statewide committee’s name because the focus of the local subcommittees had expanded beyond elk habitat. It was changed to just the Arizona Habitat Partnership Committee (HPC). Most of the local subcommittees adopted the names of their regions.
The situation remains essentially the same today, except that in 2005 the Legislature increased the number of permit tags donated annually from two to three per each big game species. Also, the Game & Fish Commission convinced the participating hunter groups to cooperate in a single fundraising effort. This resulted in the first Big Game Super Raffle in 2006, which raised $514,055. Since then, the yearly Super Raffle has generated increasing amounts of money. In 2019, for example, it brought in $669,065. The participating hunter groups, however, only provide one of the donated permit-tags they receive for each of the state’s 10 big game species to the Super Raffle. They auction or raffle off the other 20 tags on their own. Those activities collected another $1,814,200 in 2019, so the total donation to the Special Big Game License Tag Fund in 2019 was $2,483,265. (Members of the hunting groups created a nonprofit 501(c)(3) corporation in 2007, the Arizona Big Game Super Raffle, Inc., to manage the raffle. They raffle off high-end hunting equipment at the Super Raffles to help fund their operations.)
Since 1996, however, the attendance at most HPC meetings has evolved to where most of the participants are now just government agency personnel, ranchers, and hunters. Subsequently, the general public has little knowledge about what’s been going on, despite the large amounts of public money involved, because the local meetings aren’t well publicized. Furthermore, the proposed wildlife habitat improvement projects aren’t approved during the Game & Fish Commission’s regular meetings, but at a separate, little-publicized annual meeting of the State HPC, which is chaired by a Commissioner.
Cartwright Allotment Water Project
I was interested in learning more about HPC grants, so in 2019 I sent an email to the Game & Fish Department’s coordinator for the Payson Natural Resources Committee, the local HPC subcommittee that proposes HPC projects on the Tonto National Forest. He put me on the subcommittee’s email list, and in mid-August I received a copy of their August 7 meeting minutes.
The minutes mentioned a large livestock water construction project proposed for the Cartwright Grazing Allotment in the Tonto’s Cave Creek Ranger District. I knew that most of the allotment had burned in the 2005 Cave Creek Complex wildfire, and that grazing had subsequently been suspended on the allotment. I sent an information request to the District on August 13 asking for documents about the allotment’s current management status. On September 16 the Cave Creek Ranger District issued a NEPA scoping letter to solicit comments from the public about the Cartwright Allotment Water Project.
The letter explained that the 2005 fire had burned miles of cattle fence, and that most of the livestock waters on the allotment were no longer functional. It also said there was a 2008 memo of understanding between the Forest and the allotment’s previous permittee that had put the allotment into a non-use grazing status in order to allow it to recover.
The allotment’s 2017 AOI showed that a new permittee began to use it in mid-November, when 160 yearlings were authorized to graze until February 2018. Then the 2018 AOI authorized a change to 60 cattle and 10 horses yearlong, and the 2019 AOI authorized another increase to 72 cows 5 bulls, and 15 horses yearlong – which equated to about 1,182 AUMs. These increases were authorized during a drought, and when most of the allotment’s livestock waters were purportedly not operational.
The project’s scoping letter also mentioned that the allotment was permitted for up to 350 cows yearlong, as per the Forest’s 2008 decision notice for the allotment. It was obvious that the proposed new livestock waters were intended to help facilitate an increase in the authorized number of cattle grazing the allotment up to that number. In fact, the project’s $100,000 HPC grant proposal stated in italicized text that its purpose was to “optimize production and utilization of forage allocated for livestock use.”
The project proposal called for the installation of several miles of pipeline and some large water storage tanks to divert water from three perennial springs and one water well into numerous new livestock watering troughs on the uplands. Three of the pipelines would use the permittee’s water right to Seven Springs, which was fenced off from cattle. Two other pipelines would use the Forest’s water rights to two springs. One these springs, Maggie May Spring, would be fenced to protect it from cattle, but the bigger spring, Mashakattee Spring, would not. The proposal also called for another pipeline to use water from a Forest-owned well located beneath the perennial stretch of Cave Creek, downstream from Seven Springs, which is also fenced to exclude cattle.
On September 23 I contacted the Forest’s hydrologist to learn more about the Tonto’s water rights identified in the project proposal. She explained that the Forest held a water right for Maggie May Spring for livestock watering. It also held a water right for Mashakattee Spring for domestic use, which was formerly used to supply two nearby recreational areas, and the defunct Ashdale Civilian Conservation Corps camp along Cave Creek.
The proposal to convert the Forest’s water right for Mashakattee Spring from domestic to livestock use prompted me to visit the spring with some friends on September 25. We found a significantly-sized desert riparian area with a thriving population of native fish, which appeared to be longfin dace. I took some video of our visit and posted it to YouTube. It was obvious to us that the project’s proposal to divert up to 4,500 gallons a day from the spring would damage this unique and important habitat.
In the written comments I submitted about the project I pointed out that it was obvious the project’s real objective was to facilitate a large increase in cattle numbers on the allotment. I suggested that the permittee should be the one who pays for all of the range “improvements” necessary to support more cattle. Moreover, I questioned the claims that the project would benefit the local deer populations and improve riparian habitat conditions. In regards to riparian habitat, I specifically focused on the proposals to damage Maggie May and Mashakattee springs by diverting much of their water to cattle troughs. I provided the link to my YouTube video of Mashakattee Spring, and suggested that the Forest should, instead, convert its water rights for the two springs to instream flow rights, in order to keep the water in them to protect the riparian habitat and wildlife they support. I also suggested that the Forest should maintain authorized grazing on the allotment at low enough cattle numbers that the riparian grazing utilization guidelines included in the 2008 decision for the allotment could be met without diverting the springs.
Meanwhile, I had learned that the approvals for the year’s HPC grant proposals, including the Cartwright Allotment Water Project, would be made at the State HPC’s annual funding meeting to be held on January 11, 2020. In early October I made my interest in attending the meeting known to the Department’s HPC Coordinator, and I received an email reply from him that information about the meeting would be posted to the HPC web page.
On November 11 the Department’s HPC Payson subcommittee coordinator sent me an email with the subcommittee’s November 13 meeting agenda attached. It indicated that the Cartwright project would likely be forwarded for approval to the State HPC committee for approval at their January meeting.
In early December I noticed the HPC web page had been updated to show that the location of the State HPC funding meeting in January would be the Game & Fish Department’s headquarters building in Phoenix. But it didn’t show the time the meeting would start, so I sent an email to the Department’s HPC coordinator on December 11 asking for the time. He replied that it would begin at 9AM.
I also sent the Game & Fish Commission’s Chairman Eric Sparks a letter describing my objections to the Cartwright project’s approval. It mirrored the points I’d raised in my written comments to the Tonto, and it also informed him that I planned to attend the January 11 meeting to voice my concerns in person.
On December 31, 2019, Cave Creek District Ranger Micah Grondin issued a decision memo to approve the implementation of the Cartwright Allotment Water Project. In it, he conceded that the permittee wanted to begin grazing the full permitted number of 350 cattle in 2020. This was confirmed when the District issued the allotment’s 2020 AOI, which authorized up to 350 cattle, even though the allotment’s 2008 decision notice said the initial stocking rate following the recovery period would be “less than 175.”
Grondin also glossed over the damage that would be inflicted upon the springs by diverting water from them to fill the new cattle troughs. He stated that the diversions were “not anticipated to dewater” Maggie May and Mashakattee springs – as if this was the only thing that mattered. He also mentioned that, “One commenter provided pictures of a fence in disrepair surrounding the Maggie May riparian area,” and then pointed out that a fence to protect Maggie May Spring was included in the original project proposal. But the photo of a fallen fence that I had submitted during the project’s comment period was taken during my visit to Mashakattee Spring, and his decision did not include a fence to protect it.
Furthermore, in response to my suggestion that the Forest should convert its water rights to Maggie May and Mashakattee springs to instream flow rights, he wrote that the, “State of Arizona does not currently have an established process for converting a certified water right like that which is held by the Forest Service.” This prompted me to do some amateur legal research. I found state law ARS § 45-172.A which did, indeed, state that existing water rights can only be converted to instream flow rights that are owned by “the state or its political subdivisions.”
But I also discovered that all National Forests hold federal reserved water rights that were established when they were created. These federal water rights aren’t subject to state beneficial use requirements and cannot be lost due to nonuse. In other words, the Tonto, and all of Arizona’s national forests, can make de facto conversions of their federal water rights to instream flow rights by simply leaving the water in the springs and streams.
The Cartwright project’s decision memo also included two theories often used to justify projects to build new livestock waters in the Southwest – both of which deserve scrutiny. First, Ranger Grondin claimed that the new livestock waters would help protect the allotment’s riparian areas by luring cattle away from them. But research (Carter 2017) has shown that building upland livestock waters primarily facilitates increased grazing in the uplands, and provides insufficient protection for riparian bottomlands if cattle aren’t fenced out of them. And how does diverting significant portions of water out of desert springs protect them?
The other popular theory he repeated was that the new livestock waters would improve upland wildlife habitat by providing more water sources for animals. In regards to the Cartwright project, the primary legal justification for using an HCP grant to help fund it was that it would improve the local desert mule deer habitat. But there is a lack of research showing that desert mule deer benefit from livestock waters during the cool seasons or wet years, as they are adapted to arid lands. However, they have been found to concentrate around water sources in dry months or years. Subsequently, the Western Association of Fish and Wildlife Agencies (WAFWA) habitat guidelines for mule deer suggest that water sources should be no more than 3 miles apart, so that deer can be within 1.5 miles of surface water. These distance-to-water guidelines aren’t based upon hard science, but an assumption that, “Well distributed water sources likely distribute deer better through their habitat, thereby allowing them to occupy previously unused areas.”
But a review of the map showing the locations of the Cartwright project’s new livestock waters shows that only a few of them would be more than about 1.5 miles from the numerous springs in the area, or the perennial stretch of Cave Creek. Obviously, the benefits from the new livestock watering troughs would be negligible for the local desert mule deer, and the protection of the riparian areas should be a priority.
Moreover, the Cartwright project was also justified as a drought mitigation effort to create more dependable upland water sources for livestock and wildlife in dry years. But whatever benefits new livestock waters might provide wildlife in dry times, they can’t do any good if the water is turned off after cattle are moved out of the pastures in which they are located. And many of the recent projects to build new livestock waters on Arizona’s public land don’t include any requirement to keep the water available to wildlife all year.
The Cartwright project’s decision memo, however, states that the new livestock waters “will be made available for wildlife year-round.” This sounds good, until you consider that it’s doubtful that the amount of water being diverted out of the springs would be reduced during droughts. Since the amount of water emanating from the springs would likely decrease during droughts, the ecological damage caused by the water diversions would be worse in dry times. This is the situation with many livestock waters created by diverting perennial springs in the arid Southwest.
The typical diets of cattle and mule deer usually have minor overlap, because cattle prefer to graze herbaceous plants and deer prefer to browse woody plants. This is often used, as it was with this project, as a justification for permitting increased cattle grazing in mule deer habitat. But much of the Cartwright allotment’s vegetation is Sonoran Desert scrub, semi-arid grassland, and chaparral, so there’s not a lot of herbaceous vegetation. It’s the same situation on all of the Tonto’s desert grazing allotments. This forces cattle to eat a lot of brush to survive. In fact, research has shown that grasses never comprise more than 50% of the forage consumed by cattle in the desert Southwest (Rosiere 1975), and that cattle are forced to rely on eating desert shrubs during the hot and dry summer months (Smith 1993). Subsequently, cattle compete with desert mule deer for browse forage on arid allotments during the toughest times – the hot summers and droughts (Knipe 1977, Scott 1997, Severson 1983, Short 1977, Swank 1958), especially in the xeroriparian corridors (dry washes) preferred by the deer. The consumption of vegetation by cattle during dry times also negatively affects the deer habitat component of cover, especially for newborn fawns (Horejsi 1982). The bottom line is that new livestock waters facilitate desert mule deer habitat degradation by helping to keep cattle on the land during dry times.
Furthermore, Grondin’s rubber stamp approval of the Cartwright HPC project proposal facilitated an increase in livestock grazing on the allotment from the 1,182 AUMs authorized in 2019, to the 4,275 AUMs authorized in the 2020 AOI, or about 376%. This will obviously have a negative impact on the local wildlife habitat.
The 2020 AOI also appears to violate the Drought Guidelines included in the Forest Service’s Southwestern Region’s Grazing Permit Administration Handbook (FHS 2209.13, Chapter 10). The guidelines recommend that pastures should be rested from cattle grazing “for at least on entire growing season or more following severe droughts.” They also state that decisions to stock allotments after droughts should consider the value of “wildlife habitat.” But despite the severe drought in 2019, the Cartwright allotment’s 2020 AOI authorized the entire permitted number of 350 cows.
Moreover, Grondin’s use of a NEPA categorical exclusion to authorize the Cartwright project is more questionable than most. It approved an extensive new livestock watering system that wasn’t included in the allotment’s 2008 EA. Furthermore, Mashakattee Spring wasn’t even mentioned in the EA, nor was it mentioned in the biological assessment the Forest sent the U.S. Fish & Wildlife Service (USFWS) in October 2007 to obtain a concurrence that their livestock management plan for the allotment complied with the Endangered Species Act. This seems to ignore the forest-wide management prescription included in the Tonto National Forest Plan which states:
Locate and survey all potential Gila Topminnow sites. Where feasible stock sites, monitor for success, and restock if necessary.
Mashakattee Spring is an obvious potential site for the endangered Gila topminnow (Poeciliopsis occidentalis).
State Habitat Partnership Committee Meeting, January 11, 2020
I left my house very early on the Saturday morning of January 11 because it was a long drive across town to the Game & Fish Department’s building and I wanted to make sure I got to the State HPC’s funding meeting before its 9AM start time. I was surprised when I got there a little before 8AM. I saw there were a lot of vehicles in the parking lot and people were going inside, so I decided to go in too, instead of waiting outside.
In the lobby I encountered the Department’s Habitat Enhancement Coordinator. He said the meeting was about to start and guided me back through the building’s hallways to the meeting room. I was puzzled by the change in the meeting’s start time, so on the way back I asked him, “This is a public meeting, isn’t it?”
“It’s not a public meeting, according to the Arizona Secretary of State’s rules, but it’s a meeting that’s open to the public,” he replied. I didn’t believe that was true, but I didn’t say anything.
The meeting was being held in a large room and there were at least 40 people in attendance, comprised almost entirely of hunting group representatives and Department personnel. They were settled in their seats at long tables, with their documentation spread in front of them, so they had obviously received prior notice of the correct meeting start time. I picked up a copy of the meeting’s public notice and agenda from the handouts table and saw that it showed an 8AM start time. (After I returned home later that day, I checked the State HPC home page again to see if I’d missed something. There still wasn’t any HPC meeting start time or agenda on it. I also checked the Arizona Public Meetings website, but there was no notice and agenda about the HPC meeting posted there either.)
I sat down in the back of the meeting room while the meeting’s chairperson, Arizona Game & Fish Commissioner Leland “Bill” Brake, who is also a public land rancher, made some opening remarks. He said that HPC grants to ranchers are “necessary” for good ranch management, and are an “appropriate” use of HPC funds because, “project’s that are good for wildlife are good for livestock too.” He told the hunters at the meeting, “thank you for what you do for the ranching community.” He also suggested that HPC grants are better for ranchers than federal EQIP money because ranchers don’t have to do anything that they don’t want to in order to get HPC grants, while EQIP funds often have “too many strings attached.” This helped explain to me why HPC projects were being rubber stamped by Forest Service and BLM land managers.
Then the Department’s HPC Coordinator reviewed the meeting’s agenda and explained that a call to the public had been added to the beginning, wherein any member of the general public in attendance would have the opportunity to make comments up to three minutes long. I realized that if I hadn’t arrived at the meeting until 9AM, the starting time I’d been given, I would have missed my opportunity to submit comments criticizing the HPC Cartwright water project.
I raised my hand and was recognized to speak. I had a lot to say, but since I only had three minutes, I had to restrict my comments to the damage I believed the proposed water diversion at Mashakattee Spring would inflict upon its riparian habitat and native fish population. The attendees listened politely, although many seemed surprised and confused by my presence. Commissioner Brake responded to my comments by explaining that, “the project has already been scored.” He thanked me for bringing the issue to their attention, and said that just because a fence to protect the spring wasn’t include in project, “that doesn’t mean it won’t happen.” But he added that he didn’t mean that it would happen either.
The meeting then proceeded with the Department’s HPC Coordinator working down a list of the year’s proposed HPC project’s that were projected onto a screen on the wall behind him. He gave a brief description of each project, and often solicited comments about them from the hunting group representatives and agency personnel before they were approved. He also noted the dollar amount of each HPC grant and identified the big game species it was supposed to benefit. There was a finite amount of HPC money available for each big game species, so he was sometimes forced to get creative and use combinations from the various pots of species money in order to fully fund a project. Most of the HPC grants definitely benefited wildlife, but there were also some that benefited ranchers. In addition to new livestock waters, there were vegetation manipulation projects to mechanically and chemically kill juniper and mesquite trees to promote the growth of grass, which is preferred by cattle. These were justified as being big game habitat enhancement projects because elk like to eat grass too, and pronghorn antelope prefer open grasslands. One of those projects involved the aerial spraying of a dangerous herbicide. But there weren’t any projects to conduct research to determine if the strategies employed in HPC projects had produced the presumed results.
The ambiguous purpose of some of the projects was highlighted when the Department’s Habitat Enhancement Coordinator described one of the proposals as being “truly a wildlife project.” The grant approval process was supposed to end when all of the HPC money raised for the year was spent, but I left after they approved the $100,000 HPC grant to help fund the Cartwright water project.
However, during a break in the proceedings I spoke to the Department’s coordinator for the Payson HPC subcommittee and he told me that the permittee for the Cartwright allotment had hired ranch managers, and they were the ones who had written and submitted the project’s HPC grant proposal. He said they were “nice people,” so they’d probably be willing to consider my concern about Mashakattee Spring, and that he’d forward it to them for me. This confirmed my suspicion that the Department didn’t tamper with the HPC project proposals submitted by ranchers, as Commissioner Brake had implied.
I also talked to the Department’s Habitat Enhancement Coordinator and he admitted that I was the first member of the general public that he knew of who had attended one of their annual State HPC funding meetings. I didn’t doubt that was the case.
Afterwards I learned that $2,227,560 in HPC grants had been awarded during the meeting using the funds raised in 2019 from donated big game hunt permit-tags, and at their January 2019 meeting they had awarded $2,528,789 in HPC grants from money raised in 2018.
Commissioner Bill Brake
Brake’s membership on the Arizona Game & Fish Commission, especially his involvement with HPC grants, obviously raises some conflict of interest questions because he is a co-permittee on at least one BLM and four Forest Service grazing allotments. The BLM allotment is the Rose Tree allotment (#6043), part of the Rose Tree Ranch, which also holds Arizona state grazing lease #05-000138, through the Rose Tree Cattle Co., LLLP.
As for the Forest Service allotments, he is a co-permittee through the J Bar B Cattle Co., LLP, for the Campaign and Poison Springs allotments on the Tonto National Forest, and the Wildcat allotment on the Apache-Sitgreaves National Forest. The three allotments are managed together as the Rafter Cross Ranch.
He’s also a co-permittee through the Rockin Four Ranch, LLC, for the Hicks-Pikes Peak allotment on the Tonto, because the J Bar B Cattle Co., LLP, is one of the Rockin Four’s owners. The ranch’s other current partners hold grazing permits for other public land grazing allotments.
Before Brake was appointed to the Commission on January 24, 2018, he benefited from at least two HPC grants for the Rose Tree Ranch. HPC grant #13-511 was for $4,846 to pay for a solar water pump to supply some water to a livestock watering trough. Grant #17-501 was for $6,807 to replace a storm-damaged windmill with a solar-powered pump to send water to livestock troughs. That grant did not go through the regular annual HPC grant approval process, but was rushed through as an “Emergency Out-of-Cycle Request.” These two grants totaled $11,653.60, although both of their project proposals said there had been several previous HPC grants for the ranch.
The State HPC has held two project funding meetings since Brake was appointed – one in January 2019 to award the HPC grants from the money raised in 2018, and the January 2020 meeting that awarded the money raised in 2019. The lists of HPC projects approved using the 2018 and 2019 funds do not appear to include any grants for projects located on any of the public land grazing allotments for which he is a co-permittee. But it’s difficult to tell because of the limited and cryptic information the Department provides about approved HPC projects.
Commissioner Brake is also familiar with the other government assistance programs that benefit Arizona ranchers, as shown in the tables below for the ranches he co-owns.
Government Assistance Program Key
NOTE: Open Space Reserve Grants became LCCGP Grants after 2002.
|2007||LCCGP #07-76||$83,575||Grassland Restoration, Livestock Water|
|2010||HPC #09-501||$22,556||Chappo Betty Livestock Water Development|
|2012 - 2018||LFP||$24,157|
|2014||HPC #13-511||$4,846||Abner Water Well Redevelopment|
|2014||HPC #13-519*||$10,000||Kill Coyotes for Pronghorn Fawn Protection|
|2015||HPC #14-520*||$10,000||Kill Coyotes for Pronghorn Fawn Protection|
|2016||LCCGP #16-14||$39,094||Livestock Water|
|2018||HPC #17-501||$6,807||Replace Schock Windmill With Solar Water Pump|
|2019||HPC #18-523*||$10,000||Kill Coyotes for Pronghorn Fawn Protection|
|2020||HPC #19-509*||$10,000||Kill Coyotes for Pronghorn Fawn Protection|
|2021||HPC #20-511*||$15,000||Kill Coyotes for Pronghorn Fawn Protection|
|2006 - 2012||EQIP||$207,575||Campaign allotment $133,096
Wildcat allotment $74,479
|2011 - 2015||LFP||$198,402||Campaign allotment $142,264
Wildcat allotment $56,138
Financial information acquired through Freedom of Information Act requests and Public Records Requests.
The appointment to the Game & Fish Commission of someone with such a potential conflict of interest probably wouldn’t have happened before 2010, when the Legislature drastically changed the way the commissioners are appointed. At the beginning of the Legislature’s 2010 regular session, two bills were introduced, HB 2189 in the House, and SB 1200 in the Senate. They both proposed to do nothing but change the grammar of some existing laws. But they were really stalking horses for a controversial proposal, supported by the National Rifle Association (NRA), to radically change the process by which the Governor appointed new people to the five-member Commission, which oversees the operations of the Department. HB 2189 was introduced in the House by state Rep. Jerry Weiers, R-Glendale, then a strike-all amendment changed it into the bill to revamp the Commission appointment process, and then it became a substitute for Senate bill SB 1200, the other placeholder bill. The Legislature passed SB 1200 and Gov. Jan Brewer signed it in April.
The bill created a five-member Arizona Game & Fish Commission Appointment Recommendation Board to identify the candidates the Governor must choose from in order to appoint new members to the Commission. Three of the Recommendation Board members are designated by the directors of three Arizona hunter groups, one is designated by the directors of a cattle rancher group, and the last one can be a member of the general public or a “nongame” organization. The definition of one of the hunter groups is so specific that it virtually guarantees a Board member from the Arizona Sportsmen for Wildlife Conservation, which receives the donations generated from sales of the state’s Conserving Wildlife specialty license plates. Most of that money is used to encourage youth to hunt and fish. Only three members of Board must be present to constitute a quorum, guaranteeing that the hunter groups control it.
Before the passage of SB 1200, the Governor could appoint almost anybody to the Commission, subject to State Senate approval, as long as they had knowledge of wildlife conservation. Also, no more than three Commission members could be from the same political party.
Buenos Aires National Wildlife Refuge
There have been other types of questionable HPC projects. For example, numerous HPC grants have been issued which benefited ranches that use holistic resource management (HRM) grazing systems, which have been discredited by scientific research. Other HPC grants, as mentioned previously, were used to kill woody vegetation mechanically, and sometimes chemically, in order to promote the growth of grass, which is preferred by cattle, and some species of big game.
A couple of them were recently implemented on the Buenos Aires Nation Wildlife Refuge (BANWR), which was created in southern Arizona in 1985 to provide a protected home for endangered masked bobwhite quail, and other native wildlife and plant species. Livestock grazing is prohibited on the refuge, which is managed by USFWS. But some hunting is allowed, in accordance with Game & Fish Department regulations.
In 2018 the Commission approved a $53,750 HPC project proposed by the Department to restore grassland on the BANWR by using a tree masticating machine to knock down about 322 acres of mesquite trees, and then spray the area with the non-selective herbicide Velpar. The primary purpose of the project was to improve the local pronghorn antelope habitat by removing trees to create the open grassland preferred by pronghorns. Hunting pronghorns is currently prohibited on the BANWR because their local population is too low.
The project’s proposal labeled the mesquite trees as being “invasive,” but that’s a pejorative adjective that denigrates their role as a keystone plant in the Southwest. Research has shown that many wildlife species, including mule deer, are more numerous in areas with mesquite trees (Germano 1983). Even quail prefer some mesquites – with clearings. Furthermore, the primary reason for the expansion of woody plants across the Southwest was that overgrazing by cattle removed the fine fuels needed to carry the periodic, relatively mild, natural wildfires that killed young trees and maintained desert grasslands. There’s also a suspicion that the widespread historical use of trees for firewood had an effect. Today, the danger that a prescribed burn might start a disastrous wildfire often makes it difficult to try and reinstate the natural fire regime. And it’s probably impossible to reverse the situation anyway, because climate change is creating hotter and drier weather that’s more favorable for mesquite trees, which makes killing them an expensive temporary measure.
The former president of the Board of Directors of the nonprofit Friends of Buenos Aires National Wildlife Refuge (FoBANWR) convinced the Board to agree to the Department’s HPC project, and to also go along with another $10,460 HPC project proposed by the Department to thin mesquite trees around four existing dirt water tanks on the refuge, supposedly to improve wildlife habitat. She also made unilateral decisions to ask Department employees to join the Board, and in 2019 she asked the Board to agree to another Department proposal for a large HPC project to thin mesquite trees across the refuge. They refused because the project seemed to be more about accommodating hunters than habitat improvement, and the Board was troubled by the Department’s request that the BANWR use a favored contractor to complete the work.
The Board also took a closer look at the HPC project to remove mesquite trees around the dirt tanks, and scaled it back thinning mesquite around just one of the tanks for $5,400. The primary purpose of the project was to improve mule deer habitat, but they couldn’t understand how thinning mesquite around the tanks would do that. It seemed to them that the only thing it would accomplish would be to give hunters clear shots at the mule deer coming to get drinks of water.
These two HPC grants raised a couple of questions about the Department’s definition of habitat improvement. Does it consider habitat improvement to include projects that favor one game species, such as pronghorn antelope, over the other local wildlife? Also, does it include manipulating the vegetation to make it easier for hunters to shoot at game?
The Board’s experience with the HPC program also raised the question of how private contractors are procured to complete HPC projects. According to the Department’s HPC Coordinator, the Department “does not provide cooperators a list of State approved suppliers.” ARS § 41-2501.B says the state’s procurement process doesn’t apply to “grants as defined in this chapter.” ARS § 41-2503.23 then defines grants as furnishing state funds to somebody “for the purpose of supporting or stimulating educational, cultural, social or economic quality of life.” It’s questionable if this definition includes grants for wildlife habitat improvement.
The hunter groups that raised funds for HPC grants in 2019 included the Arizona Antelope Foundation, Arizona Bowhunters Association, Arizona Deer Association, Arizona Desert Bighorn Sheep Society, Arizona Elk Society, Mule Deer Foundation, Arizona Mule Deer Organization, National Wild Turkey Foundation, and Safari Club International – AZ Chapter. These were the same ones that provided input on the HPC grant applications approved at the State HPC’s funding meeting in January 2020. These nonprofit organizations regularly provide dedicated volunteers that contribute many hours of work to complete HPC projects on the ground. But some project work is completed by private contractors. With more than $2 million in HPC grants being disbursed each year, it’s reasonable to suspect that there are contractors who have made a lot of money from the program by building fences, installing livestock waters, and killing trees. And nothing prevents these contractors, or the ranchers that receive HPC grants, from being influential financial donors to the hunter groups that participate in the HPC program.
Landowner Relations & Habitat Enhancement Program
HPC grants are part of the Department’s Landowner Relations & Habitat Enhancement Program, which includes other types of assistance for ranchers, such as the Habitat Enhancement Program (HE), and the Landowner Relations Program (LRP). These other programs use different sources of money, and they are administered with even less transparency than HPC grants. The only publicly released information about the LRP, for example, is a vague list of recent projects funded using Big Game Fund money on the agency’s website.
Arizona’s Open Meeting Law
It became obvious to me during my long investigation into the HPC program that the Commission and Department want to minimize the general public’s knowledge about how it operates. For instance, it took me many months of phone calls, emails, state public records requests, and federal Freedom of Information Act requests to gather all of the information I used to write this story. Most people can’t afford to devote that much time to it, and I think that’s what they count on.
Most HPC grants help improve big game habitat, but greater transparency would help ensure that they only be used for that purpose, and that they are properly administered. Arizona’s open meeting law is designed to help the public keep an eye on what state and local government organizations are doing. The government entities subject to the open meeting law are defined in ARS § 38-431.1:
Advisory committee” or “subcommittee” means any entity, however designated, that is officially established, on motion and order of a public body or by the presiding officer of the public body, and whose members have been appointed for the specific purpose of making a recommendation concerning a decision to be made or considered or a course of conduct to be taken or considered by the public body.
This definition obviously applies to the State HPC because it recommends the approval of proposed HPC projects by the Commission. It also applies to the local HPC subcommittees because they recommend projects to the state HPC. Subsequently, they are all required to comply with the open meeting law’s procedural requirements. Those include “conspicuously” posting meeting notices, which must include meeting agendas, on the agency’s website at least 24 hours prior to the meetings, as per ARS § 38-431.02.
Furthermore, the requirements for keeping and distributing public meeting minutes are described in ARS § 38-431.01. It explains that taking meeting minutes is mandatory, they must include the date, time, and place of the meeting, the attendance of the committee members, and detailed descriptions of the matters considered and the decisions made. The minutes must then be “available for public inspection” within three working days after the meeting.
Unfortunately, the Arizona Game & Fish Commission has a poor history of complying with the open meeting law, as documented in a 2013 Performance Audit by the Arizona Office of the Auditor General. And the State HPC, as I described above, did not post a meeting notice with a start time or agenda to the Department’s HPC web page before its January 11, 2020, meeting. Nor have any minutes from that meeting been posted to the page. There’s a link to the minutes from the State HPC’s previous meeting, held July 26, 2019, but they lack the legally required information about the date and place of the meeting. That might be because it was hosted by the Arizona Cattle Grower’s Association during its summer convention at the We-Ko-Pa Resort and Convention Center. In fact, the HPC was on the convention’s agenda as part of a breakout session.
Nor have the local HPC subcommittees been complying with the open meeting law. As I explained above, I had to send an email inquiry to get on the email list for the Payson Natural Resources Committee. There are no HPC subcommittee meeting notices, or subsequent meeting minutes, posted to the Department’s website. And despite being on the Payson HPC subcommittee’s email list, I have never received any minutes from their November 13 meeting, despite having been sent the agenda for the meeting.
Moreover, the minutes that are available from the various HPC committee meetings provide incomplete information about the projects that have been approved. The Department’s HPC web page provides some information about approved projects, but it needs to include more. After I began looking into the program at the beginning of 2019, I sent an email to the Department in May pointing out that the page didn’t include links to all of the HPC projects approved in recent years, and asked for the links to the missing years. I received an email response on May 29 notifying me that links to all of the projects from 2014 to 2018 had been added to the page, but the next day they were taken down, and a follow up email informed me that I would need to submit public records requests to acquire the information. The page now includes lists for the 2018 and 2019 HPC projects, but the information that’s included in them is very limited, and I had to submit a request to obtain a list of the previous eight years of projects.
The failure of the HPC committees to comply with the open meeting law prompted me to submit a written complaint to Arizona Attorney General Mark Brnovich’s Open Meeting Law Enforcement Team (OMLET) on January 16, 2020. I also sent a copy of it to Arizona Game & Fish Department Director Ty Gray. I received a confirmation letter from the Attorney General’s office on January 21 wherein they promised to review my complaint and initiate an investigation, if they determined it was appropriate.
In February I received a response to my complaint from Department Director Gray. He claimed the State HPC had complied with all requirements of the open meeting law, even though the minutes from their January meeting still haven’t been posted to the agency’s website. In regards to that meeting’s inadequate notice and missing agenda, he said there had been “miscommunication” about it. Then he used some circular logic to claim that the local subcommittees aren’t subject to the open meeting law.
I emailed a copy of Director Gray’s letter to the Attorney General’s office on February 26 and told them I didn’t consider his response adequate, and that I still expected them to follow through on my complaint. I didn’t receive any response, so I sent them another email on March 18 asking if their assessment of my complaint was still ongoing, because if not, I might exercise my rights, as per ARS § 38-431.07, and file a lawsuit to remedy the situation. I subsequently received a voice mail message from the OMLET legal secretary on March 25 wherein she informed me that my complaint was still “under review” and reminded me that I would not receive any report from them until their process was completed. She said she couldn’t say when that might be.
The response I received from the Attorney General’s office contrasts sharply with Arizona Gov. Doug Ducey’s 2020 State of the State address, in which he said:
There are hundreds of unelected boards and commissions that exist in a dark corner of state government – often escaping accountability and scrutiny. We’ve sought to chip away at the deep-rooted cronyism. But there’s still too many insiders and industry good ol’ boys. It’s time to clean this up.
This accountability and scrutiny, however, doesn’t appear to apply if the good ol’ boys are helping cattle ranchers.
On February 17, 2020, I received a copy of the minutes from the February 12 meeting of the Payson Natural Resource Committee. I noticed that it mentioned a $2,000 Landowner Relations Program (LRP) grant from the AGFD for a “J Bar B solar project.” Since Commissioner Brake is a co-owner of the J Bar B Cattle Co., LLP, I submitted a public record request for more information about the project. On April 28 I received a response which confirmed my suspicion that the project involved installing solar-powered pumps on water wells located on Tonto National Forest grazing allotments permitted to the J Bar B Cattle Co. The Campaign Creek well is on the Campaign allotment, the Blevens Wash well is on the Poison Springs allotment, and the Storm Canyon well is on the Hicks-Pikes Peak allotment. The cover letter said that the “Cooperator elected not to move forward” with the grant agreement.
On August 6, 2020, the Arizona Game & Fish Department released its 2020 HPC grant proposal evaluation criteria which were touted as being more “objective.”
The statewide HPC selected the approved 2020 HPC grants from a list of proposed grants at its January 9, 2021, online meeting. The grants approved included recurring amounts for HPC projects that were authorized in previous years.
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