| May
2, 2003 Director
(630),
Bureau of Land Management,
Eastern States Office,
7450 Boston
Boulevard,
Springfield, Virginia 22153,
Attention: RIN 1004-AD42. To
Whom It May Concern: The
National Grange is the nation's oldest general farm and rural public interest
organization. Founded in 1867, today the Grange represents more than 250,000 individual
Grange members who are affiliated with nearly 3000 local, county and state Grange
chapters across rural America. We are pleased to offer our comments on the Advance
Notice of Proposed Rulemaking and the scoping request for preparation of an Environmental
Impact Statement (EIS) on changes to grazing regulations in the lower 48 states.
The Bureau
of Land Management (BLM) will develop an Environmental Impact Statement (EIS)
in connection with a proposed rulemaking to amend its regulations related to livestock
grazing. BLM has listed a series of subject areas that will be considered for
the new rule. Unfortunately, the agency has provided no further guidance regarding
these subjects or any further indication of what changes they would like to make.
Grange members
graze livestock on lands managed by the BLM, predominantly in the Western United
States. The passage of the Taylor Grazing Act in 1934 prescribed an orderly method
for allocating forage on public lands to be administered by BLM. The purposes
of the Taylor Grazing Act were to protect grazing resources, and to stabilize
the Western livestock industry. Grazing districts were established in many parts
of the West. Grazing was determined on the basis of "preference," which gave those
who historically used the land and lived and ranched near the federal lands the
first right to secure newly-issued grazing permits. Grazing preferences were adjudicated
in each grazing district throughout the West. Ranch units in the West are comprised
of both privately owned lands and also federal grazing permits to graze livestock
on federal lands. Ranchers relied on grazing preferences, and also rely on the
public lands to make their ranching operations viable. The
system had worked reasonably well for 60 years, until BLM, under Secretary of
Interior Babbitt, drastically changed it. "Preference" was replaced with "permitted
use," which stripped permittees of the benefits of their adjudicated forage amounts.
Range improvements, ( ie capitol investments that that permittees funded and built)
were taken away from them. Title to these improvements were then vested in the
United States. Grazing permits were given to entities that had no interest in
using the lands for livestock grazing, and regulations allowed these entities
to put the allotments into a permanent non-use category of "conservation use."
Surcharges were levied on permittees who subleased their allotments to their neighbors
in need of forage. The
system that had been in place for 60 years to allocate forage on public lands
in an orderly fashion in order to protect grazing resources, and to stabilize
the Western livestock industry was replaced with a command and control regulatory
program that is hostile to the public/private resource management partnership
that was the clear legislative intent of the Taylor Act. Private property rights
and investment back expectations inherent in the adjudicated allocation of grazing
allotments were replaced with special interest awards of grazing allotments to
non-profit entities who have little or no responsibility or incentive to maintain
or improve range conditions under scientifically determined standards. Change
is needed to restore the balance and to stabilize a livestock industry that has
been devastated by drought and low prices. We
therefore support the efforts of the BLM to amend the current grazing regulations.
The National Grange strongly supports returning the emphasis of BLM's grazing
regulations to the original intent of the Taylor Act, with reasonable accomidation
for society's increased interest in the wise stewardship of our nation's rangeland
resources. Changes are needed to make the grazing regulations more workable for
all concerned parties. To accomplish this, we believe that the BLM's regulatory
amendments should go farther than those subject areas set forth in the Advance
Notice. We
also want to associate ourselves with comments developed by the Public Lands Council,
the National Cattlemen's Beef Association, and the American Farm Bureau Federation
on suggested changes to the grazing regulations. A copy of the joint comments
is attached. In
this comment, we emphasize a few points that should be part of any new regulations.
Reserve
Common Allotment (RCA). This new concept proposed by BLM would develop a system
of BLM lands held in reserve, to be allocated for use by livestock permittees
whose allotments are unavailable due to restoration projects or natural conditions
such as drought or wildfire. The
National Grange supports the general concept of an RCA. An RCA could provide greater
flexibility to both the BLM and to livestock permittees. It provides an outlet
for producers whose allotments are unusable due to weather or fire related reasons
beyond their control. An RCA could also encourage both producers and BLM to undertake
needed restoration projects on federal lands if there is alternative forage available
for producers. If that is the intention of BLM, an RCA program would be beneficial
to permittees as well as to the goal of improved management of the grazing resource.
However, we support the concept of an RCA program only under appropriate circumstances.
Some issues that need to be addressed in regulations implementing an RCA program
include: -
Reserve common allotments should only be drawn from vacant allotments and not
created by removing permittees from existing allotments. The only exception to
this rule should be allotments given to non-profit entities for non-economic "conservation
use". These allotments should automaticly be defined as RCA allotments, since
the purpose of both programs is improved conservation management of the rangeland
resource. Otherwise, the reserve allotments should be drawn from vacant or unused
allotments. Reserve allotments might also be drawn from areas that were historically
grazed, but which have not been grazed in recent years. Existing economic use
permittees should not be removed from allotments in order to create Reserve Common
Allotments. However these limitations are not spelled out in the description of
the RCA program. These limitations should be part of the final BLMproposal
-
Reserve allotments might also be drawn from allotments where non-use is taken
for reasons other than needed rest. This would require the consent of the permittee
who has taken non-use, and would require compensation or agreement for maintenance
of fencing and other range improvements contained on the allotment.
-
The issue of water rights must be clarified prior to the development of any RCA
program. Permittee water rights in most states is predicated on making beneficial
use of water for a specified period of time. Permittees who use RCAs, or permittees
who allow their allotments to be temporarily used for RCAs may inadvertently find
that their water rights under state law have been forfeited due to non-use. RCA
regulations must follow and be governed by state water law and protect the use
and property rights to water resources of permittees. No permittee should lose
their water rights either for using a RCA or for allowing an allotment to be used
for an RCA.
-
The BLM must devise a fair and equitable process for allocating forage under the
reserve common allotment program. RCAs must be available to qualified BLM permittees
whose own allotments are unusable due to drought, fire, pest infestation or restoration
work. RCA rules should specify whether more than one permittee would be allowed
to use a reserve allotment at a time. If so, rules implementing such a program
should specify requirements such as branding and separation requirements to insure
orderly use of the allotment.
-
Any placement of allotments into an RCA must be truly "voluntary" on the part
of the landowner. There must be no coercion or "friendly persuasion" on the part
of any BLM employee to have someone place an allotment into an RCA. RCA rules
should create a fair and expedited legal cause of action against the BLM that
landowner permittees can bring against the BLM and its employees to seek injunction
and/or damages against the BLM and its employees in case rules restricting "friendly
persuasion" are not properly and completely followed.
-
RCAs should not be a subterfuge for taking "conservation use." Any RCA must be
used for grazing at its carrying capacity, and not be used as an excuse to cut
or eliminate livestock grazing.
-
Only permittees engaged in traditional economic use of grazing allotments shloud
be eligible to receive RCAs. RCAs should also not be an excuse to allow entities
not truly engaged in the livestock business to purchase private base property
and turn any associated permit over for light or no grazing. RCAs should be used,
and should be a true safety valve for permittees displaced by circumstances beyond
their control. However, permittees whose allotments are rendered unusable by bad
management practices should not be eligible to participate in the RCA program.
-
There should be a limit on the amount of RCAs in a given resource area. Allowing
no more than 10 percent of an area to be in RCA for example, might serve as a
benchmark.
Ranchers
Share Title to Range Improvements. The National Grange strongly supports a
return to the concept of economic ownership of improvements made by ranchers to
their allotments. This change would restore a provision eliminated by "Rangeland
Reform" that gives permittees some title to the range improvements that they make
and pay for. Title must vest only in permittees unless financial assistance is
provided by the government, such as cost sharing arrangements. Farmers
and ranchers who pay and construct range improvements should own them. They should
be able to list range improvements that they construct as assets on their balance
sheets for purposes of determining their eligibility for bank operating loans.
Permittees will be in a better position to obtain financing if they own their
range improvements. The National Grange strongly believes that permittee ownership
of range improvements is in the best interest of overall conservation and range
management goals. Extending
Permitted Non-Use from 3 to 5 Years. The BLM is proposing to extend the period
for which a permittee can take non-use from three to five years. This change would
provide greater flexibility to producers and to the forage resource. Ranchers
benefit because it provides them greater flexibility to address situations which
caused the non-use in the first place. Grazing forage also benefits if additional
time is needed to address situations such as drought that might require non-use.
An extension
of the non-use period must be accompanied by other changes in order to be acceptable.
Extending the period of non-use to 5 years could allow allotments to be placed
in a de facto "conservation use." "Conservation use" was added by Rangeland Reform
as a permitted use, to allow non-livestock entities to obtain grazing permits
and not use the allotment for grazing for the permit term. A five year non-use
extension should not be a subterfuge to achieve "conservation use," which the
courts have said is outside the scope of current BLM authority. Permittee concerns
on this issue are heightened by the recent BLM action in the Grand Staircase Escalente
National Monument in Utah, where grazing permits were transferred to an affilate
of the Grand Canyon Trust and essentially retired from grazing use. The
National Grange also believes that another necessary and integral part of any
extension of the non-use period to five years is restoration of a provision in
the regulations requiring that a person must be "engaged in the livestock business"
as required by the Taylor Grazing Act. That will ensure that allotments will be
actually be used for grazing and not for other uses. It
is very important that the original concept of the grazing "preference" as an
adjudicated amount of forage allocated to a permittee be restored through these
regulations in order to protect any amount of non-use from being lost in subsequent
years. Taking authorized non-use should not result in lost or reduced grazing.
Restoration of the grazing preference concept as originally included in the Taylor
Grazing Act will help to ensure such protection.
We also believe that allotments for which 5 year non-use is taken should be part
of the RCA program for at least a few years for which non-use is taken. Such a
requirement would allow the management of the allotment during the period of non-use,
and keep the allotment grazed during this time. It would also allow the original
permittee to return to the allotment at the end of the non-use period. Clarifying
that BLM Will Follow State Law with Respect to Acquisition of Water Rights.
There have been efforts by some federal agencies to claim reserved federal water
rights or otherwise acquire water rights outside the state water system. Continued
drought and increasing water demands make this a critical issue. Any water rights
should only be acquired through the process established by state water law. Rangeland
Reform also provided that water rights on federal lands for livestock grazing
purposes were to be acquired in the name of the United States to the extent allowed
by state law. We would support an amendment that would allow water rights for
livestock grazing to be acquired only in the name of the permittee as was allowed
before 1995. Non-Permit
Related Activities As Prohibited Activities. "Rangeland Reform" amendments
enacted in 1995 greatly expanded the list of prohibited activities that could
result in the suspension or cancellation of a permit. Under Rangeland Reform,
a permit could be cancelled for any violation of any state or federal environmental
law, without regard to whether it was in the furtherance of livestock grazing
under the permit. The current rule only requires that a violation be "related
to" grazing use. BLM
managers should not be authorized to take actions against a permitee for actions
that do not violate the terms and conditions of the permit itself. Nor should
permit terms and conditions contain items that are not part of grazing administration.
Permittees who abide by the terms and conditions of their permits should not have
action taken against their permit for violations of law or regulation outside
the permit. Any such violations should be addressed within the confines of the
particular law or regulation allegedly violated, and not by the additional action
against a grazing permit. These statutes provide ample authority for addressing
alleged violations on their own terms. Giving BLM the authority to also address
such issues by allowing permit actions provides too much opportunity for abuse.
State law,
in some cases, allows state leases to be cancelled for activities unrelated to
livestock grazing. For federal regulations to allow for federal grazing permits
to be suspended or cancelled when action is taken against state leases implicitly
allows for permits to be suspended or revoked for reasons unrelated to livestock
grazing. We strongly suggest that current language be modified to reflect that
federal grazing permits may not be suspended or cancelled under state law for
activities unrelated to livestock grazing. Permit
Qualifications. The Taylor Grazing Act requires that landowners "be engaged
in the livestock business" in order to acquire a grazing permit or preference.
Rangeland Reform removed that requirement, in order to allow for "conservation
use" of grazing permits. The Rangeland Reform provision was struck down by the
Tenth Circuit Court of Appeals as violative of the Taylor Grazing Act, and that
ruling was not overturned by the Supreme Court in its review of Rangeland Reform.
It was never removed from the BLM regulations, however. We
support provisions that strike "conservation use" wherever that term is found
in the regulations and restore the requirement that permit and preference holders
"must be engaged in the livestock business" as required by the Tenth Circuit and
the US Supreme Court. Because the courts have already ruled that the changes made
by Rangeland Reform were illegal, the restoration of the regulations to pre-1995
language merely represents a housekeeping, as opposed to a substantive, change
in the rules. Both changes must be made in order to comply with the court decisions.
These changes
are also necessary if the BLM intends to enact an RCA Program that is acceptable
to ranchers and permittees. Re-emphasizing
Consideration of Economic, Social and Cultural Impacts for National Environmental
Policy Act (NEPA) Purposes. NEPA requires that economic and social impacts
be considered in environmental impact statements and environmental analyses. Secretary
Babbitt had essentially eliminated consideration of cultural heritage of an area
for NEPA purposes. Livestock grazing forms a vital basis for the rich cultural
heritage of the West. The National Grange strongly believes that this cultural
heritage needs to be remembered and considered in any NEPA analysis. Changing
the Definition of "Grazing Preference." The term "grazing preference" is defined
the Taylor Grazing Act to mean the amount of forage to which a landowner is entitled
to. Grazing preferences were adjudicated throughout the West in accordance with
the Taylor Grazing Act. "Preference amounts" are forage in either active use or
in suspended non-use. A
major component of Rangeland Reform was the removal of the concept of grazing
preferences as defined by the Taylor Grazing Act. These rules replaced preferences
with "permitted use," which is that amount allowed to be grazed by the BLM. It
was the primary challenge that livestock organizations raised to Rangeland Reform
in the courts. The Supreme Court upheld the government's concept of "permitted
use." It eliminated preference holders' rights to additional forage within their
preference amounts should it become available. The National Grange strongly supports
reinstatement of the definition of "grazing preference" to the way it was defined
prior to 1995.
Streamlining the Appeals Process. The National Grange appreciates BLM's
openness to suggestions for ways to streamline its appeals process. For example,
BLM is in the process of streamlining the appeals process applicable to wildfire
management decisions. One proposal is to clarify who is eligible to appeal a decision.
The proposal would require that in order to file an appeal of a wildfire management
decision, a person has to (1) have a "legally cognizable interest" that is a particularized
interest or injury that is more than a general citizen concern about the issue,
(2) have commented either orally or in writing on the decision, and (3) only raise
issues on appeal that were raised in their comments. We
believe that the same criteria as is proposed for wildfire management issues should
also be applicable to livestock grazing issues. That is to say that in order for
a person or entity to file an appeal of a rangeland management decision, a person
has to (1) have a "legally cognizable interest" that is a particularized interest
or injury that is more than a general citizen concern about the issue, (2) have
commented either orally or in writing on the decision, and (3) only raise issues
on appeal that were raised in their comments. These standards of appeal are fair
and reasonable, and conform generally to established "standing" requirements for
suing in court. We
strongly support the elimination of the concept of "interested public" from the
grazing regulations. The current rules allow for anyone to interject themselves
into discussions between BLM and permittee with respect to allotment management
and grazing management. In no other aspect of business relationships does this
occur. We support the right of an aggrieved member of the public to appeal a grazing
decision and to be involved in BLM planning activities, but they should not be
involved in day-to-day management issues as "interested publics" currently are.
We would also
support a provision that would eliminate the "full force and effect" provisions
of Rangeland Reform. Examine
Whether BLM Should Authorize Temporary Locked Gates on Federal Lands to Protect
Livestock Operations. The National Grange believes that this issue needs greater
explanation by BLM, followed by additional time to comment by the public. The
description leads one to believe that BLM could limit access to federal lands
for livestock permittees. If this is the case, we would oppose it. There
is another scenario, however. Barring access to federal lands by a private person
is currently a prohibited act. Thus, a livestock permittee cannot currently close
gates to federal land entrances, even if a temporary closure would not affect
public access. If, however, the regulation were changed to allow BLM to authorize
a temporary closure so that the permittee could take some action that was beneficial
to the ranch operations, it might be something we could support. Comments should
describe this scenario and state that it should be enacted. Requiring
a Permittee to Apply for a Renewal. The proposal would establish an application
process for renewing grazing permits. This is a two-edged sword. On the one hand,
requiring an application process provides some protection under the Administrative
Procedures Act from adverse actions resulting from failure to comply with NEPA.
On the other
hand, it creates a burden for the rancher and provides too much discretion in
the hands of the BLM. Requiring a permittee to apply for a permit renewal will
also increase the importance of the performance review in the renewal process,
and could lead to using the performance review as an excuse not to renew a permit.
Categorical
Exclusions for Certain Permit Transfers or Renewals. BLM policy direction
requires that BLM complete analyses under the National Environmental Policy Act
(NEPA) prior to the renewal of grazing permits and other permit transfers. This
has caused a major problem for the BLM because the agency has encountered difficulty
in completing the required analyses in time. This delay of action has caused problems
for permittees, who are denied the right to graze their allotment through no fault
of their own. For the past five years Congress has enacted a specific provision
in the Interior Appropriations Bill to alleviate this situation and allow otherwise
expiring permits to be renewed, and others to be transferred. BLM
should streamline its regulations to expedite the NEPA process with regard to
grazing permits. Grazing permit transfers that do not impact the environment but
only involve paper changes should not be subject to NEPA documentation. Minor
permit changes might include transfers that do not change the terms and conditions
of a permit or transfer title from one permittee to another in the middle of a
permit term. Such actions should not have to be subject to the preparation of
NEPA documentation. Categorical exclusions were proposed for BLM wildfire management
decisions. BLM should consider implementing similar categorical exclusions for
grazing permit actions in this rulemaking. Also, BLM cannot now keep up with the
NEPA paperwork that is required to renew or transfer permits. BLM spends more
time and money on paperwork as a result. Categorical exclusions would remove the
permit action backlog, and allow BLM to spend more time and money on the ground
improving the management of rangeland resources. This
rulemaking is an appropriate time to consider rules or policy changes that would
remove the necessity of asking Congress every year for a "fix" for the NEPA dilemma
regarding permits. Grazing
Surcharge. The surcharge imposed for subleasing permits should be re-opened
and re-examined. The surcharge, added by Rangeland Reform in 1995, should ultimately
be eliminated. The surcharge is a burden for BLM to administer, does not substantially
contribute to improved rangeland management and serves no discernable purpose.
One of the
reasons for the imposition of the surcharge was the allegation that permittees
were sub-leasing their grazing allotments at significant profit. As alleged, they
would receive upwards of $10 per Animal Unit Month for the same forage that they
paid the BLM $1.35. The National Grange does not condone the practice of people
taking advantage of the federal lands in that manner. But
we also recognize that there may be legitimate reasons for charging sub-lessors
more than the federal grazing fee. Sub-lessors provide more services for their
sub-lessees than are provided by the BLM in grazing permits. Each of those services
costs the sub-lessor money. Studies have shown that when the costs of these additional
services are balanced out, the relative costs are comparable. However,
if this is still a concern, we believe that a sublease should be required to list
all the items and the costs of the services provided in the sublease, including
the grazing fee and any additional service provided beyond those provided by the
permit, in order to establish a permanent record of the cost basis for the transaction.
Make BLM Procedures More Compatible with the Endangered Species Act.
The
Endangered Species Act (ESA) continues to make it more difficult for permittees
to graze livestock in accordance with the terms of their permits. While ESA jurisdiction
resides with other federal agencies, there are changes BLM can make to its regulations
to ease ESA burdens on permittees. A couple of such changes are suggested below.
- Bring permittees
in as part of any section 7 ESA consultation involving their allotments. The Endangered
Species Act requires that any time an action is "authorized, funded or carried
out" by a federal agency, it must consult with the Fish & Wildlife Service or
National Marine Fisheries Service anytime that action "may affect" a listed species.
In most cases, the party most affected by the outcome of any consultation is a
private entity holding or applying for a federal permit, such as a grazing permit.
Yet current practice does not allow the private party to participate in the consultation
to any meaningful extent. Full private participation would assist both the BLM
and the Fish & Wildlife Service or National Marine Fisheries Service (the Services)
to arrive at a more informed and meaningful decision. The Services rules are silent
on third party participation. BLM rules could be amended to include private applicants
or permit holders as full parties with BLM in the process.
-
Notify permittees of any "citizen suits" under the ESA, CWA or other environmental
laws. Another problem with the ESA is that citizen suits that challenge livestock
grazing on BLM lands are most often filed against the BLM and not the private
permittees. Although the permittees are the parties that are most adversely impacted
by such suits, they often are not aware of such cases, nor are they made aware
of them. Injunctions may be obtained or cases settled without any opportunity
for the permittees to participate. This issue can be corrected simply by BLM communicating
with permittees that a citizen suit has been filed or that a Notice of Intent
to Sue has been filed that affects their allotments or grazing privileges. This
will allow the permittees to take whatever action they deem appropriate to protect
their interests. Notification to a grazing association (where they exist) could
be construed as notice to all of the permittees. A provision added to the BLM
regulations requiring such notification would address this problem.
The
National Grange greatly appreciates the efforts undertaken by the BLM to make
its rules relating to livestock grazing more workable. We look forward to working
with the agency to develop a set of regulations that works better for everyone.
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