The 65 head of cattle shot from a helicopter in New Mexico appear to have been gunned down by the U.S. Forest Service under pressure from the Center for Biological Diversity, with whom the agency reached a settlement agreement.

An August 2021 lawsuit filed by the CBD against the United States Forest Service sought to end grazing on federal lands, claiming that cattle grazing in the area has led to the stream-side meadows and riparian areas being “trashed” and alleged that the USFS violated various provisions of the Endangered Species Act through their administration of livestock grazing on grazing allotments within the Upper Gila River watershed on the Apache-Sitgreaves and Gila National Forests.

CBD and USFS reached a settlement with USFS agreeing to include updated descriptive information and/or maps of areas to be excluded from livestock grazing when issuing Annual Operating Instructions for the allotments and renewals and to participate in a future long-term planning effort to address conservation issues with listed species in the area, with the specifics and feasibility of that planning effort such as managing invasive species or conducting species surveys.

Prior to the aerial gunning, during a phone conference between USFS and various cattle industry groups, USFS was asked how they determined that cattle were solely responsible for alleged damage to riparian areas versus elk or other wildlife. USFS told the callers they did not know that and were relying on photos provided to them by the CBD to determine if damage exists and the source of the damage.

CATTLE DESTRUCTION OF ALLOTMENTS?

In CBD’s original Intent to sue filed against the USFS, they named multiple riparian areas across multiple states, including the Apache-Sitgreaves and Gila National Forests where ever cattle were located. CBD claimed the riparian areas were being destroyed by livestock grazing, including active allotments.

In a motion for a temporary restraining order filed on Feb. 9 by the New Mexico Cattle Growers’ Association, New Mexico Federal Lands Council, Spur Lake Cattle Company, and Double Spring Ranch, LLC, the petitioners said that although the federal agencies claim to be complying with all state and federal laws, the New Mexico Livestock Board, the state agency who administers the state statutes related to unbranded or estray livestock is publicly opposed to the “gunning down” of livestock. The motion also states that this was at least the second attempt by the USFS and APHIS to authorize the aerial slaughter of livestock. The original plan was proposed in March 2021 was met with significant resistance by cattle trade groups, environmental groups, and the New Mexico Livestock Board, and was halted.

The consortium said they believe the reason the Forest Service decided to aerial gun cattle is because they were under pressure from CBD due to a settlement agreement that they would notify a rancher of his cattle being on the river within two business days for removal within three days. According to the filing, the only Forest Service “decision” on this issue was issued in the form of a “Decision Memo Feral Cow Mitigation” dated Sept. 11, 2020. The decision memo states that its purpose is to “allow USDA APHIS to come in and remove the feral cows through whatever methods they determine are most effective.” The decision description states that APHIS shall be allowed to decide the best way to mitigate the situation. Scoping for this notice was only accomplished with the Center for Biological Diversity, and Defendant APHIS. None of the Plaintiffs/Petitioners were contacted although they have neighboring ranches.

The filing also states that even though the USFS claims all cattle present are unbranded or unauthorized, there is no indication that anyone with expertise in reading brands has confirmed that claim. The filing says it would be nearly impossible for even a trained brand inspector to identify brands or other ownership marks from an aircraft, especially true for a scared animal that is being chased by a helicopter. Without a positive review of each animal to ensure branded animals are not shot, irreparable injury is certain to occur. There is no compensation available for a rancher whose livestock is shot in this operation.

UNBRANDED CATTLE

In New Mexico, unbranded cattle are ultimately property of the Livestock Board and the state of New Mexico, making the unbranded cattle killed the property of the state, and making all cattle in the state someone’s property.

The Fence Post Magazine has obtained photos taken in the days following the aerial gunning of 65 head of cattle from a source who wishes to remain anonymous.

The photos document some of the cattle shot and left on the Gila National Forest and Wilderness in New Mexico. The estray cattle were shot on Feb. 10 and 11 by a sharpshooter in an APHIS helicopter. Producer groups were notified late on Friday, Feb. 4.

The photos include three bulls laying dead in a class 1 stream, a violation of both state and federal laws. A class 1 stream is determined by the USFS as one that provides quality habitat for fish.

Although during the court proceedings, the USFS assured Federal District Judge James O. Browning in Albuquerque that “the sharpshooter would be precise so the cattle wouldn’t suffer,” there is one mature bull with a broken leg that appears to have been shot in two, in addition to live calves that appear to be orphaned. The cattle photographed, according to the source, were shot multiple times in the head with a .308, an AR-10, and through the ribs with a rifle slug.

The source said the area is in extraordinarily rough terrain with intense brush that precluded photographing anywhere except around the area of the stream and river. The cattle in and around the stream were unbranded but others, the source said, are undoubtedly branded.

Video footage, according to the source, shows the habitat along the river that is in very good condition with willows and “stirrup-high” grasses. The river crossings are in good condition as well. The fences, some around the riparian habitat of the mouse, had multiple holes cut with large sections laying on the ground, which the source said is likely attributed to the large elk herds in the area, hunters and other recreationalists. The video also includes documentation of trash left behind by recreational users.

“Whether it’s elk or livestock, the habitat is not being destroyed,” the source said. “Secondly, what destruction that is there is being perpetrated by recreationalists. With the fence destroyed in places, you can’t keep cattle off the river, which is supposed to be happening.”

The gunning incident, the source said, is an example of extreme hypocrisy as the Forest Service would never dare shoot feral horses or elk herds in this manner for fear of public backlash.

According to the source, the XSX historical allotment is where the estrays were located though no permitees have access to the river. The grazing permits were abandoned in the 1990s though there are adjacent allotments being grazed.

HOW IT SHOULD WORK

According to previous news releases from the USFS, the Notice of Intent to Impound Livestock issued to notify the public the management of stray cattle, horses, burros or mules process is underway. By issuing the notice, the USFS is also notifying the public of its intent to gather the unauthorized livestock to determine ownership.

Once gathered, the local brand inspector is called upon to identify the ownership and contact the owner. If an owner can not be identified, the procedure outlined in statute is to turn the animals over to the Livestock Board for disposal under New Mexico state regulations.

According to statute, if the director of the New Mexico livestock board is unable to determine from the records and description who is the owner or probable owner of estrays, the director is to publish at least once in some publication designated by the New Mexico livestock board and in general circulation in the county in which the estray animal was picked up, a notice of such estray, including a description of the animal or animals, and when and where the animals were impounded. The publication will serve as notice that unless the animals are claimed by the legal owner within five days after publication, they will be sold by the New Mexico livestock board for the benefit of the owner when found.

Unclaimed strays may be sold by the board through an inspector as approved by the board. The inspector making the sale shall give a bill of sale to the purchaser from the board, signed by himself as inspector. The bill of sale shall be legal evidence of the ownership of the livestock by the purchaser and shall be a legal title to the livestock. Where the director determines that it is impractical to publish notice, the estray may be sold immediately without notice. In such case, the board is to publish notice of the proceeds from the sale of the estray in the same manner and for the same length of time as provided for the notice of the sale and shall hold and distribute the proceeds from the sale as if the sale were made after the notice.

If the lawful owner of an estray that has been sold be found within two years after the sale of the livestock, the net amount received from the sale of the estray, less handling fees, is to be paid to the owner at the discretion of the board. Statute also directs that no person other than a brand inspector may impound or retain possession of a stray and doing so will result in a misdemeanor charge.

In a 2021 USFS publication about the removal of the cattle, the agency recognized the existence of approximately 200-250 cattle in the Gila Wilderness, Gila National Forest, saying they have existed as wild entities for decades and their destructive habits are a threat to water sources, habitat for threatened and endangered species, the natural quality of the wilderness characteristics, and the ecosystems within the forests.

According to the USFS, the cattle problem began when a permittee went through bankruptcy and left the country in the 1970s. The successor permittee took possession of the abandoned cattle but was unable to gather or manage a large portion of the animals he had purchased. Due to generations in the wild and the nature of these cattle, several prior removal attempts have been insufficient.

The Gila National Forest contracted with APHIS Wildlife Services for the “humane and lethal removal of the unbranded/unauthorized cattle.” USDA APHIS has recommended that the cattle removal be done in a phased approach for maximum efficiency with a target date for this removal process is late April-May 2022 and possible continuation of removal operations in 2023. Any animals, according to the USFS, that must be humanely euthanized will not be left in a location that is visible from a system trail. If an animal dies during the operation, or is euthanized in the river bottom, the carcass must be dragged as far away from water as is feasible.