Craters of the Moon Administrative History

Chapter 6:
RESOURCE MANAGEMENT

A Case in Point: The Barkers

While most livestock owners maintained amiable relations and attempted to comply with NPS regulations, one has tried the patience of monument managers for several decades, and has thus been at the forefront of the area's trespass grazing problem. For several decades, Curtis L. Barker of Bellevue, Idaho grazed sheep on one of three Bureau of Land Management allotments adjacent to the monument's eastern and southern boundaries. The problem area was the Little Cottonwood watershed; Barker's sheep, grazing on a BLM allotment near the ridgeline above the drainage, spilled over the crest and descended upon the springs supplying the monument's water, posing serious contamination possibilities.

Barker's record of trespasses became encyclopedic. The beginning of his operation in the monument's vicinity is not known, but as early as 1959 monument superintendents were reprimanding the rancher for violating Park Service policy and driving his sheep across the northern section without permission. [96] Although his predecessors may have overlooked such infractions as inherent to the monument, Superintendent Roger Contor met the issue head on. He treated grazing issues as serious but as a matter of routine policy.

In May 1965, for instance, Contor discovered that the BLM was changing permits adjacent to the monument from sheep to cattle, and cattle unlike sheep were given free range, private landowners bearing the burden of fencing the animals off of their lands. Contor notified Bill Mabbutt, BLM Shoshone District Supervisor, that the National Park Service was firmly opposed to trespass grazing, and that the monument was exempt from this "general rule." "The responsibility of keeping domestic livestock of any type off National Monument land rests entirely with the owner of the livestock." To bolster the monument's commitment to combat stock trespass, Contor also notified Mabbutt that Craters of the Moon had erected a holding pen in the Little Cottonwood drainage to retain trespassing horses or cattle, and, he further emphasized, "we will be prepared to use it if necessary." The monument's primary goal with this stance, though, was to maintain a "good neighbor" policy, to avoid legal repercussions and hard feelings, and to strike the best possible accord with adjacent ranchers. [97]

In the summer of 1965, Superintendent Contor took a firm stance against Curtis Barker's grazing infractions. On July 1, Barker met with monument staff to discuss the rancher's illegal grazing, and after consultation with the BLM district manager in Idaho Falls, it appeared that the BLM might undertake a fencing project in the northern unit to prevent ranchers like Barker from trespassing on Park Service lands. On July 26, the Park Service funded a resurvey of the northwest section of the monument by the BLM. By September the project was complete; crew members encountered difficult terrain, surveyed some previously unsurveyed lands, and placed steel fence posts around this segment of the boundary. But the fencing program never materialized. [98]

Meanwhile, both the conference with monument staff and the boundary project caused little impact on Curtis Barker's practices. Having issued Barker one warning, Contor arrested him on September 17 for trespass grazing; Barker pled guilty on October 25 and was fined $75, with the understanding that another conviction would include a fine as well as jail time. [99] Litigation over, Contor continued with monument policy, and on December 4 permitted Barker to trail his sheep through the northern unit along the traditional driveway of Goodale's Cutoff, for a maximum of two hours. [100]

To Contor the grazing issue contained all the significance of a traffic violation; it was standard protection procedure that a larger park may not have included in a monthly report. In a similar sense, Contor's successor, Paul Fritz, treated grazing as an non-problematic issue. Fritz's management philosophy revolved around maintaining and building public relations. Consequently, he continued an assertive relationship with Barker, but rather than exchange legal responsibilities, Fritz offered an olive branch. The peace proposal was water. Fritz allowed the rancher to fill up his water supply at the monument, something no other superintendent had done to Fritz's knowledge. The superintendent, however, remained cautious. While he continued to permit Barker's trailing of stock through the northern unit, he observed the rancher's passing, making his presence known and making certain the herd traveled north of Sunset Cone and that no grazing occurred. "If you don't watch," Fritz said, "he'll take advantage of you. [101]

In Superintendent Robert Hentges' estimation that is exactly what happened. Arriving at the monument in the spring of 1974, Superintendent Hentges ascertained that past management of the issue had been a failure. Over the past seven years, for example, the monument had issued fifteen violation notices to Barker, all of them ignored. In one respect the situation had changed; sheepherders no longer trailed their flocks through the monument, [102] yet unchecked grazing by neighboring sheep still threatened monument resources. And in this instance, Hentges stated, the most serious management issue for him to resolve was "the rampant and willful sheep trespass by animals belonging to Curtis and Pat Barker [his son later became a partner]...." [103]

In his first annual report, Hentges noted the importance of solving this problem. Trespass grazing occurred with frequency; it was difficult to prevent due to the physical terrain as well as the lack of enforcement personnel; and the visible impacts of overgrazing on the hillsides were all too apparent. He also suggested that the multi-year program for fencing the northern unit boundaries for fiscal year 1978 be reconsidered. This was not a viable solution to the problem. Neither the environmental conditions nor the three-strand barb wire would make the $30,000-$40,000 project worthwhile. Because the fence line would run along sidehills, gullies, and ridges, it would be exposed to and be destroyed by drifting winter snows, and the three strands of wire would not keep sheep out. [104]

At first, Hentges tried, as had previous managers, to resolve the situation through conference with the rancher. And as past superintendents had experienced, no immediate solutions resulted. In a June 23, 1975 memorandum to the Pacific Northwest regional director, Hentges stated his case and requested assistance. For the past fifteen to twenty years, Barker as a BLM permittee had abused the monument's resources by willfully allowing his sheep to graze on Park Service land. The catalogue of contemporary impacts echoed those from the 1930s. In a three-to-four-hundred-yard penetration, "grass and all flowers had been cropped off as if a mower had passed through the area. In addition, the animal's hooves had roto-tilled much of the ground and their droppings littered the area." Because Barker abandoned his sheep near and in the boundaries for a period of six weeks each spring, summer, and fall on the average over the past years, "the ridges and portions of the slopes within the northern most part of the park are nearly barren and will continue to be until some action can be taken against this man that will convince him that he best knock it off." [105] Livestock activity also threatened the water supply's quality, the trespass occurring a few hundred yards above the four spring boxes and their dilapidated and unprotective fencing. [106]

Looking to the BLM for help proved useless, since that agency only maintained responsibility for infractions taking place on its lands. Further exacerbating the problem was the fact that small fines meted out in court offered little deterrence to Barker. And Barker, rubbing salt in the wound, "has made it a point to tell people that the monument grass has been the best and cheapest feed he has had during his ranching career." Finally, the superintendent concluded that all of this left the Park Service with the need to find "a way to correct a situation that has been allowed to fester for so many years in the management system at Craters of the Moon." [107]

The First Fencing Poject

Before the regional office could respond, Hentges offered a possible solution--a fencing project. Sometime in 1975, [108] after reaching an impasse with the Barkers, the superintendent queried the U.S. Magistrate in Pocotello, Idaho for his opinion on the problem. It was then that the magistrate, acting as a mediator, brought Hentges and Pat Barker together to reach a compromise. Barker contended that no past monument administrators had been willing to negotiate with him or his father, nor had any entertained their suggestions to construct a fence along the ridgeline separating the Barker property from monument land. Former superintendents, according to Barker, downplayed this idea, stating that in order to be practical the fence would have to run entirely on private property. And, as noted above, environmental conditions precluded the success of this approach. [109] In its simplest terms, the situation had devolved to either putting the rancher out of business, by requesting that the BLM revoke his grazing privilege, or compromising with the fencing project.

A settlement was achieved when the court officer suggested constructing the fence across mostly Park Service land. Hentges conceded, provided that proper NPS authorization and a BLM right-of-way permit were acquired, since it would cross corners of the agency's land. At this point, the deal was struck. The superintendent offered not only to allow the fence to run on the monument, but also to fund and build the fence at Park Service expense. For his part, Pat Barker would supervise the project and maintain the fence after installation, to which Barker agreed. And because Barker agreed to these conditions, the judge "forgot" the ranching operation's past violations. A short time later, both rancher and superintendent charted out a path along the monument's eastern ridgeline. [110]

Pacific Northwest Regional Director Russell E. Dickenson approved the project. On February 2, 1976, he concluded that a fencing project provided the only viable solution to the monument's grazing problem. Essentially, the director agreed with Hentges' evidence, pointing out the rancher's habitual infractions; past NPS administrative shortcomings; and most importantly, noting that the project was necessary to mitigate resource disturbance. The quality of the administrative water supply, while not adversely effected, was threatened. Vegetation at the core of the monument was pristine and deserved better protection, for the native grasses and other plant life provided valuable wildlife habitat. [111]

In its final form, the fencing agreement reflected the provisions outlined earlier by Hentges. The Service would provide funding and labor for construction, and would issue a special permit to Barker for grazing privileges on the 148 acres of land "fenced out" of the monument; the Barker ranch would supply the supervision of the construction, and would maintain the fence, as long as it ran sheep in the area. [112] Environmentally, no compliance was deemed necessary, since the fence line traversed mostly rock outcroppings of which there were no significant features. And culturally, neither historic structures nor any known archaeological sites existed in the route. [113] Where state laws were concerned, the short length of the line freed the Park Service of complying with passway-standards for migratory species such as antelope, but the fence height could not exceed forty-two inches. [114] For its part, the regional office agreed to drop the three-strand project.

Commencement of the fence project was postponed one year, during which Hentges began a boundary marking program in 1976, completing it in 1977. [115] When fence construction began that year it lasted the entire month of July. A twelve-member Youth Conservation Corp crew provided the labor. Although employed by the Park Service, they were supervised by the Barkers. The crew built a two-and-a-half-mile-long, barbed-wire fence across the northeastern portion of monument and adjacent lands. All of the materials were paid for by the Park Service and airlifted by helicopter to the ridge tops at agency expense. After being tested against sheep trespass in the fall of 1977, the fence, as Hentges reported, successfully deterred penetration by wandering animals, although some stock circumvented the fence to the north. [116]

Evidently, the superintendent intended to have the Barkers extend the fence line across Section 16, state land, down to Lava Creek to show "good faith" and to avoid the above situation. However, it seems that neither Hentges' appeals to the ranchers nor his inquiries with the state met with the results he desired. [117] Upon completion of the main fence, the superintendent hoped that the Barkers would build this other section of fence the following year. He also hoped that if the fence survived its first winter it could be extended down the eastern boundary of the north unit to the monument highway. [118] Although none of these additions occurred during Hentges' tenure, they anticipated future management actions.

The Special-Use Permit

What remained to be completed with the Barkers was the drafting and issuing of their special-use permit. Having initially prepared the permit in 1976, the monument awaited approval from the regional office and for the fence's completion before the permit was finalized and issued in 1978. [119] The document stipulated that from May 15 to November 15 the Curtis L. Barker operation could graze the

Southeast corner of section 16; T. 2N., R. 23 E. lying north and east of park fenceline; Northeast corner of section 22, T. 2N., R. 23 E. lying north and east of park fenceline...[for the purpose of the] grazing of domestic livestock (sheep) within the boundaries of Craters of the Moon National Monument...[for the sum of] one hundred dollars. [120]

The total acreage involved encompassed 148 acres of monument land, [121] determined, as noted earlier, to be of minimal value to the monument's purpose. This "sacrificial" land made possible the greater good of mitigating trespass. [122]

Six supplemental provisions accompanied the permit and included the following conditions: The Barkers were to maintain the fenceline inside and along the monument's boundaries; the ranching outfit would incur all expenses for repairs and design changes (upon Park Service review); the permittee would inspect the fence annually with monument officials, and would ensure no trespass while the sheep owner's stock were adjacent to the monument; and last, the Barkers were to understand that the fenceline by no means constituted a boundary status change, and that all NPS regulations should be adhered to. [123]

Up until 1984, the fence and special-use permit operated very well to lessen the impacts of trespass grazing in the northern unit. However, the solution also created its own problems. The Code of Federal Regulations was revised in 1984, and although it provided for certain types of livestock grazing, the new regulations did not apply to Craters of the Moon. Hence, from that year forward, the policy of issuing a special-use permit was prohibited and ceased at the monument.

The change in federal regulations left monument Superintendent Robert E. Scott with an illegal situation that the Park Service had helped create. The 148 acres fenced out of the monument were now being illegally grazed. Ironically, the plausible solution of moving the fence to enclose this section would fail because of the very reason the fence crossed the ridgeline--winter snows and terrain would destroy it and make maintenance costs prohibitive. Requiring the Barker operation to no longer use this section and keeping livestock from trespassing were both unrealistic propositions. [124] While monument officials cast about for solutions to an apparently winless situation, past practices "unofficially" continued.

Meanwhile another grazing situation developed largely out of the monument's control, involving the Barkers again, which led to more discussion of extending the existing fence to resolve the issue. As had occurred in the 1960s, on June 20, 1985, the Idaho Falls District of the BLM revised its authorization and use pattern for grazing, which basically allowed for the Barker operation to run sheep and cattle on the flats between the Blizzard Mountain Road and the north end's eastern boundary. The BLM had consulted monument personnel shortly before the initiation of its new policy and agreed to build a fence across the "flats" in 1986. [125]

Superintendent Scott welcomed the BLM's fence proposal and attempted to embrace a policy of cooperation. He suggested that the new fence, as envisioned by Hentges, should roughly traverse the eastern boundary line to prevent livestock trespass from this new use pattern. At the same time, he expressed several concerns about the BLM management actions and their effects on the monument's resource management program. First, a fence was not a solution to the trespass problem. Sheep could still go around the fence, and while it did afford some resource protection, the Barkers failed to maintain the fence as required causing the Park Service to shoulder the maintenance burden. Second, Scott, while emphasizing the importance of a fenceline in prevention of livestock trespass, emphasized this did not exempt the Barkers or others from legal actions, for he was willing to "vigorously enforce livestock regulations in all future incidents." And third, the fence itself raised questions regarding provisions for the migration of wildlife and the prevention of hunting, since here as well the fence would not demarcate the boundary. [126]

While the fencing project was still in its proposal stage, its necessity was evident several months after the BLM policy was activated. At that time, monument staff documented six incidents of Barker cattle trespass between August 17 and September 29, 1985. [127] True to his word, Superintendent Scott warned Curtis Barker of the government's legal position should trespass continue. According to Idaho state law, the Park Service, considered a private landowner, was obligated to fence out livestock, contrary to what Contor stated in the 1960s. Without a fence, Scott told the rancher in an October 1, 1985 letter that his only recourse was to enforce federal regulations. These stated that livestock trespass was illegal in the monument, and empowered the superintendent to impound livestock, which he intended to do, and if the fines for trespass went unpaid, the Park Service would auction the animals for compensation. [128]

Scott's stand apparently produced little improvement, and on July 8, 1986, he conceded that past meetings with both the Barkers and the BLM failed to create any permanent solutions to the complex situation. For various reasons, Curtis Barker stated that the solution could not come from him; financially he could not afford to construct the desired fenceline; moreover it would not even be on his land, but the BLM's. Nor did he think the problem originated with him. Rather, he was the victim of the BLM's administrative turn of hand, being forced to comply with new grazing allotments. For his part, Scott accused the BLM of indecisiveness. Although the agency had agreed to and programmed for the construction of the new fence, the BLM had "vacillated between considering a fence construction project" and "stating the problem is exclusively the park's." [129]

A few weeks later, Idaho Falls BLM District Manager O'dell Frandsen confirmed Scott's accusations. In a July 22 letter, Frandsen essentially absolved his agency of any responsibility for Craters of the Moon's grazing problems, stating that "the situation had existed when the monument was established." Frandsen said that his agency was willing to cooperate and aid the monument where it could; however, "the solution cannot come from BLM." On this point, the agency was unequivocal. As a final release from any obligations, Frandsen rescinded the offer to engage in the fencing project, citing budget restrictions. [130]

A short time later, Scott turned to the regional office for guidance, unable to find solutions at the local level. Recapping the history of the grazing situation to Pacific Northwest Regional Director Charles Odegaard, the superintendent noted that over time he and his predecessors had exhausted all possibilities of cooperation with the rancher, the BLM, the U.S. Attorney's office, the Federal Magistrate, and U.S. Solicitor's office. To date, thousands of Park Service hours had elapsed attempting to find a permanent resolution. By now the double-pronged issue was all too familiar: how to prevent livestock from grazing the 148 acres in the northern unit (or legally allow them to continue), and how to mitigate the recent trespass problems.

With regard to the first issue, Scott suggested several possibilities. He advocated amending the CFR to include the special-use permit option for Craters of the Moon. He stated that such a regulation would help solve this unique case. Although the monument recommended the new regulation, the regional director did not approve of this avenue; the Park Service's authority in this area was uncertain, and there was also concern that this action might set a precedent for other areas. Another solution offered was a boundary revision for the northern unit, to redraw the boundary lines to conform to geography instead of township and range. Scott noted that this option would solve one problem but create another; trespass grazing would be controlled more effectively, while encouraging more illegal hunting from the ridgeline. As for the second grazing issue, given the events noted above, the superintendent still believed that a fence was the most logical solution. [131]

The Boundary Revision

Once the BLM removed itself from the fencing program, the Park Service decided to solve the situation on its own and put the grazing issue to rest. For this reason, perhaps, Superintendent Scott reversed the monument's position on revising the CFR and submitted a boundary change proposal to the regional office later in 1986. [132] Regional Director Odegaard approved the proposed boundary revision, which would delete 315 acres from and add 210 acres to the monument. The new boundary would conform with the hydrographic divide, and a fence would be constructed along the ridgeline to prevent livestock trespass. More importantly, it would help solve both the Barker problem specifically and trespass grazing in general. It would protect the monument's watershed and establish a boundary that would serve the needs of both the National Park Service and the Bureau of Land Management. [133] In short, the issue had come down to a matter of simply drawing the line on a map: trespass of any kind, legal or otherwise, was unacceptable. Although approved and sent to the Department of the Interior in January 1988, the proposal was delayed there indefinitely while issues such as park expansion were addressed. [134]

The Second Fencing Project

While waiting a decision on the boundary change, Superintendent Scott pursued the fence construction project to treat the trespass of livestock from the north as well as the east. By 1988, a four-mile long fence was in place. It traversed the hydrographic divide of Little Cottonwood Canyon crossing BLM as well as NPS lands extending to the highway. Relations with the BLM remained on good terms so the location did not become a source of friction. Similar to the previous fencing project, the monument employed YCC labor to construct the fence. Similar as well, the Park Service was unable to build the entire length desired. Scott's proposal called for six-and-a-half miles to be added to the original fence on both ends, for a total of nine miles, but only four were added, totaling six-and-a-half miles. There was no funding for the entire length, yet Scott did not press for more, since he was satisfied that trespass south of the highway was minor. [135] Furthermore, the fence did not completely surround the northern unit, so trespass grazing continued.

In 1989, the BLM revised its grazing allotments and permitted cattle to graze on tracts in the Big Cottonwood Canyon west of the northern unit. Once again, trespass grazing occurred, this time in the Leech Creek drainage. This sensitive riparian area, easily impacted, provided one more example of why the monument wanted to bar livestock from within its boundaries, and why a boundary revision would resolve critical management problems.

No Tolerance

In 1990, a significant decision regarding the grazing issue took place. After gaining law enforcement support and cooperation from Butte and Blaine counties, Superintendent Scott embraced a policy of no tolerance toward trespass grazing. Especially important was the case of Barkers and those acres covered under the former special-use permit. In a March 12 letter to Curtis Barker, Scott articulated the monument's new position. Until the proposed boundary revision became reality, there was no "simple and quick" end to their conflict. Whether the boundary was redrawn or not, Scott concluded that, after inspecting the northern unit the previous fall, "the area can no longer suffer the kind of impacts that grazing is causing." He then stated that he planned to prosecute livestock trespass to the full extent of federal regulations, whereby violators would incur a six-month jail sentence and a $5,000 dollar fine. "It is my intention," Scott told Barker, "that the above actions be carried out whenever your livestock are found within the monument boundary." There was no more room for compromise; trespass was Barker's "mode of operation," and this action would no longer be tolerated. Cooperation had been a one-sided affair at the Park Service's expense; Barker never maintained the fence as he had agreed, and he claimed to have constructed the original fence when he actually functioned as a supervisor only. As Scott noted "we feel that you have not demonstrated a good faith effort to prevent livestock trespass within the monument." [136]

The superintendent's new stance, however, was deflated by the U.S. Attorney's 1991 ruling. This precluded Park Service enforcement of trespass grazing on the 148 acres fenced out of the monument based on historical precedent. In effect, by allowing Barker to graze those lands, the Park Service "acknowledged the limited significance" of the land in question, "as well as the propriety of the land use for sheep grazing. To now pursue criminal sanctions in the light of that factual reality and a bureaucratic 'snafu' would be imprudent legally and unfair morally." Barker was absolved of all charges, and continues to graze monument land. [137]

When the grazing policy was established in the 1930s, it met the needs of the time. It made grazing an unsanctioned land use within the monument, and to maintain amicable relations with neighboring ranchers, authorized seasonal sheep crossing. Within the last several decades, this latter provision became less of a concern, while illegal livestock encroachments evolved into the central point of contention. In a sense, the Barker tale is exceptional, considering that most ranchers abide by agency regulations. By the same token, the Barker case is significant because its resolution might apply to the grazing problem in general. Yet for more than four decades the case's various "solutions"--fencing, special permit, proposed boundary revisions, and no tolerance--have resulted in a "catch-22." To one former superintendent, the issue represented "a funny but sad testimony about a simple problem that could have been so simply solved with the managerial experience which was always available in both the Western and Northwestern Regional Offices." [138]

Ironically, in the fall of 1991, an aging Barker died, in effect solving only part of the problem for the Park Service. With his operation and land for sale, the door is open to an uncertain future. Unless a more effective way to prevent trespass grazing and protect the monument's water supply and other natural resources is found, the situation will continue with Barker's replacement.