Cole Case & Baker County Birds

In This Issue:

- Cole Case Developments [Edited 4/22/10]
- Some Baker County Birds (Spring Arrivals)
________________

COLE CASE-- Defense Attorney J. Robert Moon, Jr. Files MEMORANDUM IN SUPPORT OF DEFENDANT'S MOTION TO SUPPRESS [Evidence]

The sluggish legal process made a significant lurch forward this week in the Brian Cole sexual abuse case, when his attorney filed a motion to toss out essentially all the significant evidence. Cole, a former Economic Development Director, consultant, former County Commissioner, and former Nazarene Sunday school teacher, has been accused by the State of Oregon "of four counts of sexual abuse in the third degree (Class A misdemeanors) and two counts of providing liquor to a person under 21 (Class A misdemeanors)."

Wednesday, April 14, 2010, Bob Moon, a premier defense attorney here in Baker City, filed a motion with our Circuit Court to suppress (exclude) the most important and damaging evidence produced by the prosecution in the case--beginning with information gathered at the time of initial law enforcement contact at the Rural Fire Protection District property on Pocahontas Road. Alleging that the stop was illegal, Moon then claims that "all other evidence derived from" the evidence obtained during the stop, must be suppressed.

While attorney Moon's "facts" and and legal theories in support of Cole's defense have yet to be responded to by the prosecution, presented below is the text from pages 1 through 7 of his memorandum, which encompasses the "facts" from the defense perspective, and the text from pages 18 & 19, which offer the defense's conclusions. As I am not a lawyer, and as his arguments in pages 7 through 18, have not yet been responded to by the prosecution, it seemed to me less that helpful for the pursuit of justice, to include them here without rebuttal from the prosecution. I have removed the numerous references to the alleged victim and her family, by placing in brackets "[]" other references, such as [the 17 year-old minor].

It was surprising to me that while the press is properly admonished to protect the identity of alleged juvenile victims, the courts and defense attorneys have no such qualms. In fact, Attorney Moon's memorandum seems to go out of its way to reveal the victim's identity, not that many do not already know. In following up on this question, I have found the Oregon state agencies in Salem less than forthcoming. Generally, a minor is someone under the age of 21, and a juvenile is a person under the age of eighteen. [Corrected on my own edit 4/22/10] In this case, the alleged sex abuser, was 47 at the time of the incident. The alleged victim was 17 years old.

The most relevant portion of the defense's argument is that:

"The October 31,2009, contact between Deputy Maldonado and Brian Cole was a "stop" without legal justification and was thus illegal. From this illegal stop the state obtained evidence of furnishing alcohol to a minor. The state used this iIIegally obtained evidence to secure a November 3, 2009, warrant for [the minor's] messages from October 30, 2009, to November 1, 2009, even though that application only established probable cause to believe that evidence of "furnishing aicohol to a minor" would be found in a single phone call and text message that occurred on October 31,2009."

Following up, the defense then presents the "Fruit of the Poisonous Tree" argument that "Any and all evidence derived from an unreasonable search and/or seizure must be suppressed as "fruit of the poisonous tree."

Beyond that, basically, the defense contends that because in their view, the check on suspicious activity at an out of the way rural fire department was "illegal," then most of the evidence gained from statements made during the stop are inadmissible, and that because the defendant was not read his "Miranda" rights, even though no arrest took place, anything he said should also be inadmissible. They further contend that, in order to find incriminating evidence, the State Police used "coercive techniques" to gain information from the alleged victim, and used unjustified illegal searches to gain access to "sexually-suggestive" text messages between her and the defendant, Brian Cole. The evidence included what the state described as "sexually explicit text messaging." The state also contends that the alleged victim's father had no right to consent to the search of his juvenile daughter's computer, which revealed a "personal journal" with statements that led the state "to conclude that [the alleged victim] had a romantic relationship with Brian Cole."

Here is the text of the portions of the motion minus the laborious and legalistic arguments:

"MEMORANDUM IN SUPPORT
OF DEFENDANT'S MOTION
TO SUPPRESS


I. FACTS

On October 31, 2009, at approximately 8:15 p.m. Baker County Sheriffs Deputy Travis Ash drove past the Baker Rural Fire Department (BRFD) station located about two miles west of the Baker City limits on Pochahontas Road. He noticed a car parked underneath a light in the BRFD's parking lot. At that time, Ash was handling another matter of urgency, so he called Baker County Sheriffs Deputy Gabe Maldonado on his cell phone and asked Maldonado to check on this parked car. At the time, Maldonado was finishing a traffic stop on Hwy 30, but after finishing that stop he drove to the BRFD.

Maldonado arrived at BRFD at approximately 8:33 p.m. with his overhead lights on. According to his police report, he pulled into BRFD's parking lot where he saw a white four-door Volkswagen backed into the end of the gravel parking lot facing Pochahontas Road with it's lights off and he noticed the ·car had no front license plate. Maldonado saw that the car had two people in it. Maldonado reported that the man looked startled. Maldonado says he saw a younger-looking female and he thought the two of them were passing something between them because they were both looking down towards the center console. Maldonado parked in front of the Volkswagen and turned on his vehicle spotlight. He reported to dispatch that he was on a "traffic stop ... no front plate." Maldonado then says he saw the driver sit back in his seat, place his left elbow on the driver's door and lean his head on his left hand.

Maldonado approached the Volkswagen on the driver's side door and the driver identified himself as Brian Cole. Maldonado asked Cole for identification and Cole gave Maldonado his license. Maldonado then asked the passenger to identify herself and she said she was [. . . .]. She then told Maldonado her date of birth and he determined that she was 17 years old. During the conversation Maldonado could detect an odor of alcohol. Maldonado then asked Cole to step out of his car. At that time, Baker County Sheriffs Deputy Rich Kirby arrived at the fire station. When Cole got out of his car Maldonado reported that Cole said "I know this doesn't look good." Cole explained that the [17 year-old minor . . .] was unhappy with her performance and they were sitting there talking about it.

Maldonado told Cole that he could smell alcohol and Cole said, "I've had a few sips, but that's all." When asked whether [the 17 year-old minor] had been drinking Cole said, "I don't know. I don't think so." Cole said that he and [the 17 year-old minor] had not been doing anything else in the car and that a bottle of schnapps was in the car. Maldonado asked Cole if he would consent to the search of his car and Cole agreed. Maldonado then explained the situation to Kirby. They decided that Kirby would further question Cole, and Maldonado would talk to [the 17 year-old minor].

Kirby asked Cole what he was doing there with the 17 year-old minor. Cole explained that [the 17 year-old minor] . . . had a bad day that day, so they were at the fire siation talking. Kirby asked how the two of them had gotten together that night and Cole could not remember whether he called her or whether she called him. Cole told Kirby that he picked[ the 17 year-old minor] up near his office in downtown Baker City and that she was in the vehicle when he went into his office and grabbed the bottle of schnapps.

[The 17 year-old minor] explained to Maldonado that she was walking around Baker City when Cole called her. She looked at her cell phone and told Maldonado that Cole called her at 7:47 p.m. that evening. Maldonado asked her where she was going when Cole called her and she said she was just on a walk . . . . Maldonado asked [the 17 year-old minor] how she would describe her relationship with Cole and she said they were "friends, that's it."

[The 17 year-old minor] said Cole is ". . . ." The 17 year-old minor then admitted taking a "couple of sips" of the schnapps.

[The 17 year-old minor] told Maldonado that the schnapps were undemeath her seat. Maldonado
then searched Cole's car and found the schnapps bottle.

Maldonado then asked Cole how he and [the 17 year-old minor] got together that evening and Cole said that he picked [the 17 year-old minor] up. Maldonado asked if Cole called [the 17 year-old minor] or if [the 17 year-old minor] called Cole and Cole said "I don't know," but he then thought about it further and said, "I texted her."

Cole was then issued a citation for furnishing alcohol to a minor and was told he was free to leave. [The 17 year-old minor] was transported to the Baker County Sheriffs office by Deputy Kirby where she was cited for minor in possession of alcohol. While at the Baker County Sheriff's office waiting for her parents to arrive, Kirby noticed that she was text messaging someone. Shortly afterwards, [the 17 year-old minor] was released to her
mother . . . .

The police involved in this investigation were likely still very suspicious that some type of illicit relationship existed between Cole and [the 17 year-old minor], so the next day on November 1, 2009, Deputy Ash determined that [the 17 year-old minor]'s cell phone number was . . . . and Brian Cole's cell phone number was . . . . Ash then wrote letters to their respective cell phone companies requesting that those companies preserve all text and voice messages associated with these numbers. Ash indicated in these letters that "the incident date began on 10-31-09 and is still ongoing."

Also that day the Oregon State Police's major crime unit began investigating this case and OSP Sergeant Ty Duby asked OSP Detective Dave Aydelotte to work on this criminal investigation of Brian Cole. On November 2,2009, Aydelotte went to [the 17 year-old minor's] home in Baker City and met with her father . . . . Her Father told Aydelotte that he provides a cell phone to his daughter, . . . , through a family plan at U.S. Cellular and that he pays the bill on this account. [The father] told Aydelotte that he knew the [17 year-old minor's ] phone had been working on October 31, 2009, but on November 1 they were unable to get the phone to stay on.

A U.S. Cellular representative told [the father] that the phone had been water damaged. Aydelotte asked [the father] for consent to obtain the cell phone records from [the 17 year-old minor]s account, including text messages. [The father] agreed and signed a "consent to search" form. He also told Aydelotte that [the 17 year-old minor] had a Dell laptop computer that was paid for by both him and [the 17 year-old minor].

On November 3, 2009, Aydelotte applied to the Baker County Justice Court for a search warrant to obtain the cell phone records, including text messages, from [the 17 year-old minor] and Cole's cell phones. Aydelotte indicated in his search warrant affidavit to Justice of the Peace Lise Yervasi that he was investigating the crime of providing liquor to a person under 21. Aydelotte said in his affidavit that on Saturday, October 31, 2009, Brian Cole was cited for furnishing alcohol to a minor, 17-year-old [minor]. Aydelotte indicated that Cole admitted texting [the 17 year-old minor] to pick her up that evening and that [the 17 year-old minor] admitted that Brian Cole called her at 7:47 p.m. that evening. Aydelotte asserted that he had probable cause to search both Brian Cole's cell phone records and [the 17 year-old minor]'s records for the crime of furnishing alcohol to a minor and, based on that assertion, Judge Yervasi authorized the search of all of the cell phone records for both Brian Cole and [the 17 year-old minor] for the timeframe of between October 30, 2009, through November 1,2009. The warrants were served later that day. The records were provided to Aydelotte on November 5, 2009. The records from Brian Cole's cell phone contained no text messaging between Cole and [the 17 year-old minor]. However, Aydelotte reviewed the text message records captured on [the 17 year-old minor]'s phone and found sexually-suggestive texts that he thought were exchanged between [the 17 year-old minor] and Brian Coie on October 30,
2009.

On November 11, 2009, Sergeant Duby and Detective Aydelotte interviewed [the 17 year-old minor] at Baker City's Oregon State Police office. After what can only be described as a very coercive interview, [the 17 year-old minor] denied having any sexual contact with Brian Cole, but acknowledged that they exchanged text messages where they described sexual scenarios to each other.

On November 22, 2009, Aydelotte applied for another search warrant in the Baker County Justice Court. Aydelotte described what he thought was sexually-explicit text messaging that was exchanged between [the 17 year-old minor] and Brian Cole that he had obtained from [the 17 year-old minor]'s cell phone records. He acknowledged in this application that [the 17 year-old minor] was 17 years of age. He swore that probable cause existed to search Brian Cole's home, office and person for electronic equipment for the crime of "online sexual corruption of a child in the first degree" under ORS 163.433.

Aydelotte then asked for a warrant to search Brian Cole's home, office and person for electronic equipment for that crime. Then, without any grounds to believe that [the 17 year-old minor]'s computer would also contain evidence of online corruption of a child in the first degree, Aydelotte asked for a warrant to seize her computer as well. Despite online sexual corruption of a child in the first degree defining "child" as a person the defendant reasonably believes to be under 16 years of age (see ORS 163.431(1)) and having no grounds to believe that evidence of that crime would be on [ the 17 year-old minor]'s computer, Judge Yervasi signed a warrant authorizing the search of [the 17 year-old minor]r's computer.

[The 17 year-old minor]'s computer had her personal journal that Detectives Aydelotte and Duby were able to review. The journal had entries that led Duby and Aydelotte to conclude that [the 17 year-old minor] had a romantic relationship with Brian Cole. Duby and Aydelotte then re-interviewed [the 17 year-old minor] on December 3, 2009. Aydelotte and Duby confronted [the 17 year-old minor] with several journal entries. She first explained that these were short stories that she was making up. Then, in what can only be described as an incredibly coercive interview, [the 17 year-old minor] indicated that Brian Cole had
touched her several times sexually.

Sometime thereafter, a Baker County grand jury convened to consider this case. [The 17 year-old minor] testified at this grand jury and likely testified that Brian Cole provided her alcohol on January 1, 2009. The grand jury did not deliberate in this case. Rather, on February 10, 2010, Special Baker County District Attorney Sean Riddell filed an Information accusing Brian Cole of four counts of sexual abuse in the third degree (Class A misdemeanors) and two counts of providing liquor to a person under 21 (Class A misdemeanors).

III. CONCLUSION
The October 31,2009, contact between Deputy Maldonado and Brian Cole was a "stop" without legal justification and was thus illegal. From this illegal stop the state obtained evidence of furnishing alcohol to a minor. The state used this iIIegally obtained evidence to secure a November 3, 2009, warrant for [the 17 year-old minor]'s text messages from October 30, 2009, to November 1, 2009, even though that application only established probable cause to believe that evidence of "furnishing aicohol to a minor" would be found in a single phone call and text message that occurred on October 31,2009.

From these illegaily-obtained text messages, Troopers Duby and Aydelotte interviewed [the 17 year-old minor] on November 11, 2009. [the 17 year-old minor] disclosed no sexual contact between her and Brian Cole, but she gave Aydelotte additional information that he used to obtain a November 22, 2009, warrant to search [the 17 year-old minor]'s computer. Of course, in this November 22, 2009, application Aydelotte swore that he had probable cause to search for the crime of "Online Corruption of a Chiid" when he knew or should have known that a "child" was defined as a person reasonably believed by the defendant to be under 16 years of age when, in fact, [the 17 year-old minor] was 17.

This illegal search disclosed to the state [the 17 year-old minor]'s personal journal that they used as leverage, along with other coercive techniques, to eventually get [the 17 year-old minor] to declare that Cole had engaged in sexual contact with her. Under these facts, the state cannot prove that they would have obtained evidence of this sexual contact (or evidence of the January 1, 2009, furnishing alcohol to a minor) "independently" or "inevitably," so this court should declare that all evidence obtained by the state in this case was "fruit of the poisonous tree" and order it suppressed.

Brian Cole should have been given Miranda warnings on October 31, 2009, Also, statements made by Brian Cole to the police that day where made after an illegal stop. For those reasons, his statements should be suppressed and any consent he
gave should be deemed invalid as involuntary. Finally, this court should rule that Cole has a privacy interest in his text messages, which could not be overcome by [the father]'s consent. So, evidence obtained from [the 17 year-old minor]'s cell phone records should aiso be suppressed by this court.

RESPECTFULLY SUBMITTED this 14th day of April, 2010.
J. Robert Moon, Jr. OSB#81322
Attorney for Defendant"

__

See Also:
Baker County Blog: 1) Western Wildlife and 2) New Cole Hearing Set
Mar 30, 2010

Odds & Ends: Brian Cole Case and Environmental Issues
Feb 18, 2010

Hells Canyon Early Spring Wildflowers (also, Brian Cole Case)
TUESDAY, MARCH 9, 2010

Halloween Happenings: Brian Cole Cited for Furnishing Alcohol to a Minor
Last update 8:50 PM, 11/3/09.
__________

Some Baker County Birds (Spring Arrivals)

Baker County in March

Lots of Baker County birds have returned since February. Hard to know where to start. How about February? Only a few here, the rest for another blog.

Horned Larks

I began to see these sometime year-round residents in late February and early March. They were quite common in small groups or pairs by March 15th, in often windswept bare ground and sagebrush country, from Shetky Road north of Highway 203 and on to the east. It is said to be an early nester, with Gabrielson & Jewett (Birds of Oregon, 1940) putting the dates as between April 3, and June 20. Gabrielson & Jewett wrote that horned larks used to exist here in "great wintering flocks."although I have not seen them. The "streaked horned lark" of the west side of the state, much reduced in numbers, was recently featured on an edition of PBS's "Oregon Field Guide."
Horned Lark, Eremophila alpestris, Schetky Road, May 11, 2008

Red-tailed Hawks (Buteo jamaicensis), the most numerous of our raptors, are nesting now in the larger trees in Baker County (as are the Great-horned and Barn Owls, except that the Barn Owls are more often found in small cliff caves, barns and manufactured owl boxes).

Red-tailed Hawk, Beaver Creek, 2/26/09

Adult Red-tail, Stall Road, 12/27/09

Red-tailed Hawk nesting on Sunny Slope Rd., April 26, 2010

Osprey

Another almost common raptor in Baker County is the Osprey--also known as the Fish Hawk. At the time "Birds of Oregon" was written in 1940, the Osprey had been in serious decline in Oregon. Today, due to various efforts, including the placement of nesting platforms near fish-bearing water, they are doing well. Platforms with nests can be found along Highway 7 at Hudspeth Road and a mile or two further west. There is another on Wingville Road near Highway 30, another on the east side of the "UPS/Freeway ponds," and another just south of Highway 86 where it crosses the Powder River before entering the lower Powder River canyon. Perhaps the favorite spot for leisurely viewing is Anthony Lakes, where they can be seen diving feet and head first into the lake, in an often successful effort to capture trout swimming near the surface. Osprey's first arrive in very late March or early April, and leave in October.

Osprey (Pandion haliatus), Snacking on fish, Sunnyslope Road, Baker County, OR, April 6, 2010

Osprey Family with small chick on left, Hwy 7 and Hudspeth Road, Baker County, OR, April 28, 2007

Osprey Family on nesting platform,
Wingville Road about 1/8 mile west of Hwy 30, Baker County, OR, July 4, 2009
_____

The Last Resort

Odds & Ends: Brian Cole Case and Environmental Issues

In this Issue:

- Brian Cole Case

- ODFW Collars Three Wolves in Imnaha Pack

- HCPC--From the Canyons Blog

- George Wuerthner--Cows Versus Condos--Revisited

- Aldous Huxley Quote From Information Clearing House
_________________

Brian Cole Case

The Baker City Herald (Chris Collins) has done an excellent job of reporting on and staying with the Brian Cole Case.

Here is the article that was posted on the Herald web site yesterday afternoon:

Link: State files new charges against Brian Cole
Written by Chris Collins February 17, 2010 03:34 pm

I haven't had time to look at any court documents that may be available, but the article mentions " four [new] counts of third-degree sexual abuse involving a 17-year-old girl against former Baker County Commission Chair Brian Cole."

I do know that Brian Cole has cleared out his Orbis Group office in Basche-Sage Place. Brian Cole employed the 17 year old at that office.

Oregon defines third degree sexual abuse as follows:

"163.415 Sexual abuse in the third degree. (1) A person commits the crime of sexual abuse in the third degree if the person subjects another person to sexual contact and:
(a) The victim does not consent to the sexual contact; or
(b) The victim is incapable of consent by reason of being under 18 years of age.
(2) Sexual abuse in the third degree is a Class A misdemeanor. [1971 c.743 §115; 1979 c.489 §1; 1991 c.830 §1; 1995 c.657 §11; 1995 c.671 §9]"


Sex crime Definitions:
181.594 Definitions.
(5) “Sex crime” means:
(a) Rape in any degree;
(b) Sodomy in any degree;
(c) Unlawful sexual penetration in any degree;
(d) Sexual abuse in any degree;
(e) Incest with a child victim;
(f) Using a child in a display of sexually explicit conduct;
(g) Encouraging child sexual abuse in any degree;
(h) Transporting child pornography into the state;
(i) Paying for viewing a child’s sexually explicit conduct;
(j) Compelling prostitution;
(k) Promoting prostitution;
(L) Kidnapping in the first degree if the victim was under 18 years of age;
(m) Contributing to the sexual delinquency of a minor;
(n) Sexual misconduct if the offender is at least 18 years of age;
(o) Possession of materials depicting sexually explicit conduct of a child in the first degree;
(p) Kidnapping in the second degree if the victim was under 18 years of age, except by a parent or by a person found to be within the jurisdiction of the juvenile court;
(q) Online sexual corruption of a child in any degree if the offender reasonably believed the child to be more than five years younger than the offender;
(r) Any attempt to commit any of the crimes set forth in paragraphs (a) to (q) of this subsection;
(s) Burglary, when committed with intent to commit any of the offenses listed in paragraphs (a) to (q) or (t) of this subsection; or
(t) Public indecency or private indecency, if the person has a prior conviction for a crime listed in this subsection.
(6) “Sex offender” means a person who:
(a) Has been convicted of a sex crime;
(b) Has been found guilty except for insanity of a sex crime;
(c) Has been found to be within the jurisdiction of the juvenile court for having committed an act that if committed by an adult would constitute a sex crime;
(d) Is paroled to this state under ORS 144.610 after being convicted in another United States court of a crime that would constitute a sex crime if committed in this state; or
(e) Is paroled to or otherwise placed in this state after having been found by another United States court to have committed an act while the person was under 18 years of age that would constitute a sex crime if committed in this state by an adult.
(7) “Works” or “carries on a vocation” means full-time or part-time employment for more than 14 days within one calendar year whether financially compensated, volunteered or for the purpose of governmental or educational benefit. [Formerly 181.517; 1997 c.538 §2; 1997 c.709 §4; 1999 c.626 §§2,2a; amendments by 1999 c.626 §§25 and 26 repealed by 2001 c.884 §1; 2005 c.483 §1; 2005 c.567 §5; 2005 c.685 §11; 2007 c.876 §6; 2009 c.713 §1]

Note: 181.594 to 181.596 were enacted into law by the Legislative Assembly but were not added to or made a part of ORS chapter 181 or any series therein by legislative action. See Preface to Oregon Revised Statutes for further explanation.

I am unfamiliar with how Oregon law treats "third degree sexual abuse" if it is also accompanied by charges of "furnishing alcohol to a minor." If you would like to comment, send them to me at refugee2000@gmail.com.

Information concerning Oregon law about offenses against persons can be found here:
Chapter 163 — Offenses Against Persons
__________________

ODFW Collars Three Wolves in Imnaha Pack

Russ Morgan, ODFW wolf coordinator, with the female pup radio collared on Feb. 13. (ODFW Photo)

Here is the press release from ODFW:
Three Imnaha pack wolves collared


Russ Morgan, ODFW wolf coordinator, with the 97-pound male wolf collared Feb. 12. (ODFW Photo)
__________________

Hells Canyon Preservation Council: New Blog: "From the Canyons"

Hells Canyon Preservation Council is maintaining a new blog.

You can find it here: From the Canyons.

The most recent blog is on "Columbia River Threatened by Radioactive Waste from Hanford."

"Fifty-three million gallons of high-level radioactive waste have been stored in underground tanks at the Hanford Site and many of these tanks are leaking highly-toxic liquid into the soil."
___________________

Cow or condos a false choice between public lands ranching and sprawl.
From RangeNet, by George Wuerthner

One hears the cows vs condos argument continuously. I wrote this a while ago, but the basic arguments haven't changed. This might be useful to consult the next time you hear the argument that without ranching, we would have unlimited sprawl. Feel free to comment on New West web site.

Cows or Condos: A False Choice Between Public Lands Ranching and Sprawl

By George Wuerthner, 2-16-10
Author of "Welfare Ranching: The Subsidized Destruction of the American West," and also available elsewhere in coffee table book form.

Ag crops, many of them grown for livestock feed, dominates western landscapes.

Author’s Note: I first wrote this about 8 years ago, but the same arguments continue to crop up today with livestock proponents using the fear of sprawl as their club against any serious critiques and full accounting of the ecological impacts of livestock production. These arguments fail to consider the full geographical footprint of livestock production, nor the economic forces that drive sprawl. Availability of private land for sale does not necessarily result in sprawl. Even if ranching did limit sprawl to some degree it is a blunt tool compared to other more effective measures like land use planning and zoning. I am posting this review because the basic information has not changed significantly since I first wrote the piece. Updated references would provide essentially the same numbers--for instance, a 2002 review of Land Uses in the United States found that urbanization and developed land occupies 3% of the US.

Introduction:

Fear of sprawl and urbanization is a major obstacle to effecting change in public lands ranching policy, but the perceived connection between loss of grazing privileges on public land and loss of private ranchland to development has little basis in fact. The impact of livestock production is also minimized by many people who do not appreciate the geographical scale at which it occurs in the West. There are effective ways to protect open space and other values on private lands, but maintaining livestock on public lands is not one of them.

I have been giving talks and slideshows about the negative effects of western livestock production for many years. I go through a litany of ecological, economic, and human health costs until members of the audience are awash in facts and statistics as well as dozens of images of cow-trashed landscapes. Often my audiences are very sympathetic to environmental causes and are troubled by what they hear. But inevitably, when I suggest that at least on the public lands, livestock grazing be eliminated, someone will raise an objection. It always goes something like this: “Well, I agree livestock do damage. But if you eliminate grazing on public lands, the ranchers will be forced to subdivide on the private lands. Then we’ll get more houses, condos, and people. Isn’t that far worse than what the cows do?”

The answer, in a word, is “No.”

First, condos and sprawl, bad as they are, are not worse than ranching. Primarily, this is because “sprawl” and all other urban/suburban and second-home development takes up a relatively tiny area of the West, whereas livestock grazing and crop production to support livestock takes up immense acreages. While I do not dispute the damage done to natural systems by sprawl, livestock production also costs a great deal in terms of both ecological health and taxpayer dollars.

Second, the notion that protecting ranchers will preserve open space is wrongly premised on the belief that without access to public lands forage, permittees will inevitably go out of business and sell their ranches for development. I believe there is compelling evidence to suggest a very different dynamic driving development in the West, rather than rancher hardship.

Finally, “cows versus condos” is not only a falsehood; it is a an impediment to clear thinking and effective action on the problems of habitat conservation and preservation of open space on both public and private lands. So long as land protection advocates focus on a false choice between cows or condos, they ignore proven ways to protect ecological values on private lands as well as continue to allow livestock to degrade ecosystems. Conservationists must move beyond “cows versus condos” if they are serious about long-term protection of western lands.

The Geography of Sprawl and Agriculture

Elsewhere in this book, the ecological costs of growing livestock are enumerated. Here, I focus on the scale of that activity for the simple reason that most people seem to have very little sense of comparison between the physical footprint of cities and subdivisions in the West and that of livestock production.

In order to help you think about the geography of the West, let’s pretend you are going on an airplane flight. Your journey begins in Denver, say, or Phoenix, or Salt Lake. As your plane waits in the queue for take-off, you are surrounded by asphalt. Not far off are city streets, buildings, and bustle. When you land, in Sacramento perhaps, or Portland, or Los Angeles, it’s the same thing. But if you look out the window while you are flying, that is not what you see for hour after hour. If you are fortunate to have a clear day, you see this: mountains, valleys, plains, deserts. Occasional towns, if you happen to be peering out at the moment the jet rushes over them. Now and then, especially if your route is along the Pacific coast, you see the tell-tale gridwork of urban centers. But the dominant impression-if you judge it fairly, if you bother to watch that window between take-off and landing-is open land. I.e., land without human residents, or at least very few. Indeed, once outside of the major urban centers and resort communities, open space is the dominant feature of the West.

But let’s pretend again that you are flying. This time, you are wearing very special eyeglasses. They are designed to recognize and alter the hue of any land that is dedicated to livestock production, much like Landsat photos that shade areas differently, according to dominant plant communities. I’ll call these glasses “Livestock Lenses.” Let’s say the land looks red wherever it is utilized in some fashion for the raising of livestock. In the West, that’s primarily cattle, a few sheep. So, when you fly over rangelands, public or private, you see red. Over the West, there’s a whole lot of land used as livestock range, so you see lots of red-flying over mountains, over forests, over deserts. But there’s also cropland that is dedicated to raising feed for cattle-hay and alfalfa, primarily. And thus you see valley after valley, extensive flatlands, all red, or nearly so. And then, these very special Livestock Lenses have a mechanism for detecting the degree to which water is also used for livestock. Rivers that are partially diverted for irrigation, to grow cattle feed, these are pink. From so high up in a jet, you probably cannot see all the tiny rivulets and streams threading, crimson, vermilion, across the landscape. But they are there-some impounded or diverted for irrigation, many more serving as watering troughs for grazing animals, and also as conduits for manure and soils eroded by pounding hooves.

By the time your plane descends and you pull off the Livestock Lenses, you have seen a landscape dominated by one color-and one use. For that is what the West-especially the arid West-is: a geography dominated by livestock use.

Indeed, livestock production dominates the entire country, not just the West. The land area utilized for livestock production-including rangelands, pasture, and the production of forage crops (corn, soybeans, alfalfa, etc.)-occupies 65-75 percent of the total U.S. acreage, excluding Alaska, according to U.S. Department of Agriculture statistics ( USDA 1997b). Four crops account for approximately eighty percent of all acreage planted per year in this country: hay, corn, soybeans, and wheat. All but wheat are grown primarily to feed livestock (USDA 1997a). In comparison, (and again, not counting Alaska), the amount of land taken up by sprawl and development is slightly more than four percent (USDA 1997a). In the West, urban and suburban landscapes, including fairly low-density subdivisions, occupy an even smaller fraction of land than in the country as a whole. Sprawl, though a serious and usually permanent blight where it occurs, is not the major ecological threat to the natural systems of the West for the very reason that it is-despite the connotation of the term-confined to a limited area. (I readily acknowledge that cities are drawing resources from a huge area, and their ecological footprint is great-but that is a different debate than the matter of sprawl eating up the western landscape. Per capita resource use is an issue of lifestyle for all Americans, urban and rural.)

The latest Geographical Analysis Program (California Dept. of Fish and Game 1995) reported that less than 4.5 percent of California--the most heavily populated western state--is urbanized, and that figure includes all highways, malls, subdivisions, and industrial parks. Most of the human population is concentrated in a few large metropolitan centers like San Diego, Los Angeles, San Francisco, and Sacramento. Agriculture, however, is far more pervasive, affecting about seventy percent of the state, by a conservative estimate. This includes croplands, as well as pasture and rangeland. The majority of this land is dedicated to livestock production. Very little grows crops directly consumed by people. For example, about 1.5 percent of California’s land area is used to grow vegetables (California Dept. of Food and Agriculture 1998; California Dept. of Conservation 2000). And from this relatively small amount of land comes about half of all the vegetables grown in the United States (USDA 1997b).

In Montana, according to recent figures compiled by the Montana Department of Fish, Wildlife and Parks, some 95 percent of the state land area is occupied by fewer than four people per square mile. These are “frontier” lands, according to the old 1890 U.S. census standards. Yet despite the fact that most of the state is essentially uninhabited, numerous native species are imperiled or significantly reduced in numbers, primarily because of agriculture-which in Montana usually means livestock production. These species include bison, wolf, grizzly bear, swift fox, black-footed ferret, Columbia sharptail grouse, sage grouse, and a host of others. What is particularly disturbing about this list is that all these species were once widespread and abundant in Montana. None of the forgoing animals have specialized habitat requirements. It is clear that “open space” is not the same as good quality wildlife habitat (Wuerthner 1997).

Thus, it is the pervasiveness of livestock impacts, and the huge geographical scale at which livestock production occurs, that makes it a far greater threat to the native plant and animal species of the West than sprawl. This is not to minimize the serious consequences of sprawl and development where it is occurring. Still, it should be recognized that this development is relatively concentrated and occupies a small proportion of the western landscape.

Demand Drives Development

Now, even if one is inclined to disagree with my assertion that livestock production is a disaster for the West’s native species and ecosystems, that doesn’t mean ranching can preserve open space. Even if you think livestock are ecologically benign, supporting ranchers does not safeguard ecosystem values. That’s because ranching can’t and doesn’t prevent subdivisions. The problem is complex, but one has only to realize that most western cities sit on land that was once ranched, farmed, or grazed to see that the mere presence of agricultural land did not stop urbanization in the past. And it is not stopping it now.

The growth of subdivisions and sprawl is driven by demand, not the mere availability of land. In fact, sheer population growth accounts to a significant degree for the expanding boundaries of most western cities. A study reviewing census data since 1970 shows that per capita land consumption, or the average area of land physically occupied by people, is actually declining in many western cities (Kolankiewicz and Beck 2001). And at the regional level, sprawl in California, the Southwest and the mountain West is overwhelmingly due to population growth, and very little is due to increases in per capita land consumption (Kolankiewicz and Beck 2001). Net in-migration, the major reason for population growth in the West as a whole, is fueled by a number of factors, including availability of employment and amenities. Most sprawl is occurring near existing large cities where jobs, good schools, transportation centers, and diverse cultural offerings are located (Holechek 2001).

Recreation-related development ("condos") is another type of sprawl occurring in the more rural areas of the West. It is a phenomenon of highly scenic areas with superlative opportunities for activities such as skiing, fishing, boating and other outdoor pursuits (Power 1996). Again, however, the growth of select recreation/ resort/ retirement sites in the West probably cannot be separated from population pressures overall and accompanying declines in urban quality of life. Whether one looks at spreading cities or burgeoning “hot spots,” the fact is that without addressing the demand for land created by increasing numbers of people in general, any effort to prevent sprawl is ultimately doomed to failure.

It is easy to see why the simple availability of land is not the driving force behind sprawl when you look at places that are not experiencing population growth. You do not find much threat of subdivision in the middle of North Dakota or eastern Montana-places where tens of millions of acres are for sale. Why not? Because marginal agricultural economics plus mere availability of private land does not add up to sprawl. A landowner may greatly desire a sale to developers, but he or she will not get it, unless there is already demand for land. Very few people want to live in North Dakota except the people already there. No demand, no sprawl.

Low demand has several effects. First, it keeps land prices low. Low land price means that another rancher or farmer can afford to purchase the land of a neighbor and pay off the mortgage running cows on it. When land prices rise--as they have done in some of the more scenic parts of the West--it becomes impossible to get into ranching, or to expand one’s existing operations. The rising cost of getting into ranching is aggravated by declining profitability of livestock production (Holechek 2001). Only wealthy “hobby” ranchers can afford to purchase ranches (Petersen and Coppock 2001). Indeed, many ranchers think of their ranches as retirement nest eggs and have every intention of eventually selling their property for development. One study in Utah found that 43 percent of public lands ranchers approaching retirement age state a desire to sell their land to developers (Petersen and Coppock 2001).

High land prices (i.e. high demand for real estate) in an area can hurt the ability of ranchers to pass their land on to the next generation, even when that is their wish (Petersen and Coppock 2001). In addition, many children of ranching families are simply not interested in taking over the business (Liffmann et al. 2000). There are many factors driving this trend, including better economic opportunities outside agriculture. The high price of land, where this is the case, not only makes selling to developers more attractive to present owners, it becomes one more reason children can’t or won’t continue to run the ranch. If there are several children in a family, deciding who gets to keep the ranch potentially worth millions of dollars become a thorny issue. For many, the easiest solution is to sell it and split the profits among all heirs.

In the past, low land prices permitted western producers to compete with more productive agricultural regions through an economy of scale. Western lands generally support fewer animals per acre than more equitable climes, but ranchers could easily buy and own thousands of acres or acquire vast tracts of public lands, compensating somewhat for low productivity by maintaining large holdings. Rising land values have undercut the viability of this option. Ranchers can no longer expand their land holdings and pay off the mortgage with a low value product such as beef (Liffman et al. 2000; Petersen and Coppock 2001; Holechek 2001). Yet the minimum herd size, hence land base, needed to be an economically sustainable operations continues to rise, further undercutting the long term stability of the western livestock industry.

An increasing problem for the livestock industry is simply the higher cost of doing business. For generations ranchers have externalized many of their operational expenses-primarily to the environment and also to taxpayers, who subsidize ranching in a myriad of ways. Whether one is talking about below market-value grazing fees on public lands; taxpayer-subsidized irrigation projects; or the numerous environmental costs which the land and society must bear; ranchers have lowered production expenditures because the rest of us have carried the true debt for them. Now, as the American citizenry wakes up to the losses-ecological and economic-ranchers are being asked more and more to pay the full costs. Given the financially marginal nature of most western livestock operations, this can only hasten the demise of ranching in the West.

All of these difficulties are exacerbated by globalization of the market. Increasingly, the price ranchers get for their cows is determined by the world market, not regional or even national economic forces. Yet, production costs are local. Cheaper beef can be grown elsewhere-either because in other, moister, milder regions, the costs are inherently less, or because in other parts of the world, labor and land are less expensive. There is very little the rancher can do to alter these distant situations.

The False Dichotomy of Condos or Cows

The final problem is the false dichotomy of condos or cows. In truth, over much of the West the current economic choice is cows, or…well, there aren’t a lot of other options. Some ranchers sell out to other ranchers-increasingly, the new owners are corporations, or distant millionaires (Petersen and Coppock 2001). Other ranchers turn to game farming, or other pursuits that are dubious from both ecological and public interest perspectives. In some places, the unfolding reality is cows and condos: livestock grazing continues on rangelands, while the limited wildlife habitat that did exist on private lands shrinks ever more.

Critics of eliminating livestock on public lands erroneously assume that the only way of forestalling private land subdivision is by keeping ranchers going, by whatever means possible. Yet, this is wrongheaded for two reasons. First, as I’ve explained above, the economic forces at play are both complex and powerful. For the most part, there is little ranchers or ranching proponents can do to influence beef prices, nor are they going to stop the public cry for cleaner water, restored species, intact ecosystems and the like. And unless laws are passed to forcibly halt newcomers at state or county borders, it will be very difficult to put a lid on demand for real estate in places either picturesque-like Paradise Valley, Montana-or booming with opportunity-like Silicon Valley, California. Where land prices rise high enough-in other words, where the demand is great enough-most ranchers are tempted to cash in, if not this year or next, then a decade hence. Relying on the good will and endurance of ranchers is not a good strategy for ensuring long-term land protection.

Furthermore, despite the either/or dynamic implied by the “condos or cows” mantra, there is not a direct relationship between loss of public lands grazing privileges and subsequent sale of private ranch land. Surveys among livestock producers have shown that lifestyle and independence are the prime motivations for remaining in ranching (Rowe et al. 2001). If access to public lands forage is reduced, many ranchers will seek to stay in the business by modifying their operations: buying more private land, reducing herd size to fit existing private land holdings, and obtaining outside employment to bolster family income (Rowe et al 2001).
Perhaps one of the most unfortunate consequences of the “condos or cows” mentality is the lack of initiative among a variety of conservation groups and open space advocates in taking up truly effective private land conservation strategies. Instead of developing and supporting PROACTIVE mechanisms for land protection, they are lulled into supporting a PASSIVE methods that utilizes a flawed strategy dependent upon rancher beneficence to maintain open space in the face of rising land values. There are many proactive strategies examples from around the country of approaches to open space protection that don’t depend on the acceptance of continued degradation of both public and private lands. Below I briefly describe a few. However, there are probably many more creative solutions that could be imagined and implemented, if only we could get away from the paralyzing fear that without cows, our only option is houses and concrete.

* Zoning and Planning. These are fighting words in much of the West, but if you care about protecting both social and ecological values, zoning and planning really work. Oregon has a state-wide zoning system that limits all new development within designated urban growth boundaries. This automatically protects open space outside of the urban regions. It also has the effect of keeping agricultural land prices low, since these are unavailable for residential development. The Willamette Valley which is home to 70 percent of Oregon’s population including the cities of Salem, Eugene, and Portland, has 95% of the land area in agricultural production (with plenty of ecological impacts as a result) timber or other rural land uses.

* Land Acquisition. Many ranchers don’t like this option too well, either. But the public can decide to make funds available for willing sellers of land that hold important wildlife, scenic, or recreational values. Or private organizations, like land trusts, may purchase significant properties and either donate them to the government, or keep them as private preserves. Of course, if cows remain on the purchased lands, I would argue that much of the ecological benefit of the acquisition is lost.

* Development Rights. These can be purchased or traded. In the Pine Barrens of New Jersey, for instance, landowners can “sell” their development rights to developers in urban areas. The urban developers can then apply to city governments to build higher density housing than normally permitted. The law allows them to mitigate, in essence, for the high density in the city by preserving open space in the barrens. In either the case of land acquisition or acquisition of development rights, protection against sprawl is far more secure than with a policy of hoping ranchers will act against their economic self-interest, even as the market pressures on them increase. And remember, while outright purchase and acquisition of development rights can be expensive, development is not a threat over most of the West. We don’t have to buy all the private ranch land to afford reasonable protection against condos or subdivisions. Many properties will remain open space, no matter what conservationists do or don’t do.

Those who suggest we don’t have the money to buy up critical lands forget that we currently bestow billions of dollars upon the agricultural industry in the form of subsidies and direct payments. In the fall of 1999, for example, Congress granted an emergency $8.7 billion relief package on top of $26 billion it was already doling out that year to agriculture. Of this, tobacco growers alone received $340 million to make up for a decline in tobacco sales-the result of anti-smoking campaigns (for which taxpayers have also paid to a large extent). To give some perspective, $340 million is more than was spent in 1999 on all federal land acquisitions, in all 50 states. There is plenty of money in the federal budget, if the political will can be mustered to prioritize permanent protection of habitat and open space. Political will for such investments is undermined by those advocating ranching as a mechanism to protect and preserve open space and wildlife habitats.

Americans are clearly willing to fund land acquisition if they believe no other alternatives are viable. Florida--not known as a particularly liberal, or “green,” bastion--has spent more than $450 million a year on land acquisition programs since 1991 (Florida Department of Environmental Protection and Greenways Program 2001). In a state that has seen more development pressure than most of the West will see for the next several centuries, Floridians realized that the only effective way to ensure open space was preserved was to buy it. They have reiterated their commitment to this strategy by voting several times in favor of land protection bond measures.

We must get beyond the misleading and destructive belief in “condos or cows.” While thousands of acres go under the bulldozer because of a misplaced faith in ranching as a land protection strategy, hundreds of millions of acres continue to be pounded under the hooves of cattle. While the search goes on for “win/win” solutions between stockgrowers and conservationists, what is more likely to happen is the “lose/lose” reality of unguided, uncontrolled development in the beauty spots and hot markets of the West, and unabated abuse of the lands and waters that belong to all the people-the public lands-and ultimately, to all the wild creatures that inhabit them.

What would a West without cows be like? Endless subdivisions and cities? Hardly. It would be just this: millions of acres, rich with newly invigorated native grasses; robust with sagebrush and other shrubs no longer bulldozed or chained to make way for cattle feed; swept by growing herds of elk, wild sheep, pronghorn antelope and bison; vibrant with the energy of predators large and small-from wolves to black-footed ferrets, from grizzlies to swift fox, kestrel, and burrowing owl. The West, without cows, would be thousands of miles of clear streams running deep, filling up with fat native fishes, welcoming back along their margins flocks of raucous song birds, and a slow, quiet tide of lesser-known beasts: reptiles, amphibians, and invertebrates of all kinds. Relieved of livestock, the West would see the re-appearance of the great cottonwood galleries, the re-greening of lowland meadows, the re-gained curvature and grace of flat valley rivers. This, and much more, would be the West without cows.

Next time you fly over it, imagine a West like that.

References

California Dept. of Conservation. 2000. California Farmland Conversion Report 1996-1998. Pub. #FM 2000-01. CDC, Farmland Mapping and Monitoring Program. Sacramento, CA.

California Dept. of Fish and Game. 1995. GAP analysis of mainland California: an interactive atlas of terrestrial biodiversity and land management (CD-ROM). CDFG, Natural Heritage Division. (http://www.biogeog.ucsb.edu.projects/gap/gap_home.html).

California Dept. of Food and Agriculture. 1998. California Agricultural Resource Directory. CDFA. Sacramento, CA. (http://www.cdfa.ca.gov).

Florida Dept. of Environmental Protection and Greenways Program. 2001. Tallahassee, FL. (http://www.dep.state.fl.us/gwt/).

Holechek, Jerry L. 2001. Western ranching at the crossroads. Rangelands 23(1): 17-21.

Kolankiewicz, Leon and Roy Beck. 2001. Weighing sprawl factors in large U.S. cities. NumbersUSA. Arlington, VA.

Liffmann, Robin H., Lynn Hunsinger, and Larry C. Forego. 2000. To ranch or not to ranch: Home on the urban range? J. Range Management 53(4): 362-379.

Montana GAP Analysis. 1998. (CD-ROM). University of Montana, Montana Cooperative Wildlife Research Unit, Wildlife Spatial Analysis Lab. Missoula, MT.

Petersen, Regina and D. Layne Coppock. 2001. Economies and demographics constrain investment in Utah private grazing lands. J. Range Management 54(2): 106-114.

Power, Thomas M. 1996. Lost landscapes and failed economies: The search for a value of place. Island Press. Covelo, CA.

Rowe, Helen I., Matt Shinderman, and E. T. Bartlett. 2001. Change on the range. Rangelands 23(2): 6-9.

USDA. 1997a. America’s private land, a geography of hope. ISBN 0-16-049127-4. USDA, Natural Resources Conservation Service. Washington, DC.

USDA. 1997b. National Resources Inventory. USDA, Natural Resources Conservation Service. Washington, DC. (revised Dec. 2000) (http://www.nhq.nrcs.usda.gov/NRI/1997).

Wuerthner, George. 1997. Subdivisions and extractive industries. Wild Earth (autumn 1997).
__________________

Aldous Huxley Quote From "Information Clearing House:"

"There will be, in the next generation or so, a pharmacological method of making people love their servitude, and producing dictatorship without tears, so to speak, producing a kind of painless concentration camp for entire societies, so that people will in fact have their liberties taken away from them, but will rather enjoy it, because they will be distracted from any desire to rebel by propaganda or brainwashing, or brainwashing enhanced by pharmacological methods. And this seems to be the final revolution." - Aldous Huxley, Tavistock Group, California Medical School, 1961