Grazing Fees and Rangeland Management III

CONTENTS FOR THIS SECTION

Legislative Activity
Litigation

LEGISLATION
CONGRESSIONAL HEARINGS, REPORTS, AND DOCUMENTS
FOR ADDITIONAL READING

Legislative Activity

On September 24, 1997, the House Agriculture Committee marked up and ordered to be reported a new grazing bill entitled the Forage Improvement Act of 1997 (H.R. 2493), H.Rept. 105-346, Part 1. The bill was amended and reported by the House Resources Committee on October 8, was reconsidered and again ordered to be reported on October 22, H.Rept. 105-346, Part 2. As reported, the bill would have codified and altered some grazing management definitions found in current regulations, added new definitions, required "consistent" rules for Forest Service and BLM lands, codified a new grazing fee formula, and altered certain other range management procedures. Many of the more controversial provisions were dropped before passage, such as the definitions on allotments and base property, which some had felt might have tended to support the argument that a grazing permit confers a property right. Provisions on access across private lands and resource advisory councils were also dropped, together with most of the language on subleasing. The bill passed the House on October 30, 1997. As passed, the bill principally required more consistent rules for the FS and BLM lands, set out a new grazing fee formula and directed higher fees for foreign-owned grazers, and addressed monitoring and subleasing. H.R. 2493 was marked up and reported without amendment by the Senate Energy and Natural Resources Committee on July 29, 1998. The bill did not reach the Senate floor.

Several legislative attempts to replace the new rangeland management regulations were made in the 104th Congress: in S. 1459; as part of H.R. 1977, the FY1996 Interior and Related Agencies appropriations bill; and in H.R. 2491, the budget reconciliation bill.

Litigation

Several court rulings have addressed aspects of federal grazing programs.

Many of the new BLM grazing regulations were challenged ("on their face" rather than as applied) in Public Lands Council v. Babbitt, 929 F. Supp. 1436 (D.Wyo.1996). The district court, on June 12, 1996, upheld the new regulations on permittee and lessee affiliates, 3-year temporary non-use, and non-exclusive use of water-related range improvements, but struck down several others. The district court also upheld the constitutionality of the regulations in two respects: 1) the regulation on suspension or cancellation of a grazing permit or lease if a permittee or lessee is convicted of violating certain environmental laws does not violate the double jeopardy clause of the Constitution; and 2) the regulation imposing a surcharge on a permittee if he allows livestock not owned by him or his children to graze on public lands does not violate due process. The court also upheld the government's processing of comments on and its adoption of the rangeland management standards called "Fundamentals of Rangeland Health," and upheld the adequacy of the Final Environmental Impact Statement that accompanied the final regulations.

The court struck new BLM regulations separating "grazing preference" (a priority to receive a permit) from "permitted use" (actual AUMs allowed on an allotment); titling structural range improvements in the name of the United States; and including "conservation use" within the definition of active use. Regarding grazing preference and permitted use, the court found that the Secretary's action failed to "adequately safeguard adjudicated grazing preferences" and that the 1995 regulations lacked a reasoned basis in this regard. The prior regulations included AUMs in the definition of grazing preference. On the issue of titling range improvements, the court held that the Taylor Grazing Act and the Federal Land Policy Management Act "clearly" indicate that Congress intended to grant title to range improvements to those who constructed them. The court found that including "conservation use" within the definition of "active use" exceeded statutory authority and contradicted congressional intent in the Taylor Grazing Act and FLPMA. Similarly, the court held that the elimination of the requirement that a permittee be engaged in the livestock business lacked a reasoned basis, and "violates the Taylor Grazing Act and frustrates its purposes."

The district court affirmed in part the Secretary's decision to implement the 1995 regulations and reversed it in part, enjoining the Secretary from enforcing the regulations the court set aside.

On appeal, the 10th Circuit upheld the regulations on title to range improvements, but struck down the regulation allowing conservation use over the full term of a permit.

The appellate court also upheld the regulations on grazing preferences, noting that, as before, permitted use under the new regulations could encompass active and suspended use, is specified in permits, is attached to base property, and is transferable with base property. In addition, a permittee continues to be given priority for new permits upon acceptance of any new terms and conditions. The court further noted that both the TGA and FLPMA reflect the fact that Congress did not accept the concept of permanency of grazing preference AUMs. For further discussion of the case, see: Pamela Baldwin, "Federal Grazing Regulations: Public Lands Council v. Babbitt, CRS Report 98-851 A, October 15, 1998.

The court in Pacific Rivers Council v. Thomas, 30 Fed. 3d 1050 (9th Cir. 1994), cert. denied 115 S. Ct. 1793, enjoined grazing activities that are likely to affect or might affect species listed under the Endangered Species Act, pending completion of consultation. The extent of the direct effect of this ruling is not clear because consultation procedures have been speeded up recently and because some grazing activities have been allowed to go forward in the interim. (The courts have differed on this aspect of the issues.)

The 9th Circuit in Oregon Natural Desert Association v. Dombeck, 1998 U.S. App. LEXIS 16485 (No. 97-35065, 9th Cir. July 22, 1998) recently reversed a district court decision holding that state certification under § 401 of the Clean Water Act was necessary before a federal grazing permit could be issued. The appeals court held that § 401 only applied to "point sources"of pollution and not to "non-point sources" such as grazing activities. However, we note that under current grazing regulations, federal grazing permittees still must comply with state water quality standards. See 43 C.F.R. §§ 4140.1(c)(1) and 4180.1(c) in re BLM grazing and 36 C.F.R. § 222.4(a)(6) in re Forest Service grazing.

LEGISLATION

P.L. 105-277, H.R. 4328
Omnibus Consolidated and Emergency Supplemental Appropriations for FY1999. Directs the BLM to renew grazing permits under current terms and conditions until compliance with all applicable law (including environmental review) is completed. Passed the House on October 20 and the Senate on October 21, 1998. Signed into law October 21, 1998.

H.R. 515 (Andrews)
Corporate Welfare Elimination Act of 1997. Title II, Subtitle C, directs the Secretaries of Agriculture and the Interior to establish an annual grazing fee equal to fair market value. The bill also includes provisions regarding abolition of grazing advisory boards and the U.S. share of grazing receipts. Introduced Feb. 4, 1997; referred to the Committee on Ways and Means, and in addition to the committees on Commerce, Resources, Agriculture, Transportation and Infrastructure, and the Budget, for a period to be subsequently determined by the Speaker.

H.R. 547 (Nadler)
Free Market Grazing Fees Act. Requires the Secretary of the Interior and the Secretary of Agriculture to establish grazing fees at fair market value for use of public grazing lands. Introduced Feb. 4, 1997; referred to the House Committee on Resources.

H.R. 919 (G. Miller)
Public Resources Deficit Reduction Act of 1997. Generally directs fair market value for use or disposal of federal resources. Title III would: 1) establish a new grazing fee equal to "fair market value"; 2) abolish Grazing Advisory Boards; and 3) dedicate the U.S. share of grazing fee receipts to fish and wildlife habitat restoration and enhancement, riparian area management, and plan enforcement. Introduced March 4, 1997; referred to the Committee on Resources, and the Committees on Agriculture, and the Budget, for a period to be subsequently determined by the Speaker.

H.R. 1829 (Furse)
Establishes a formula for the calculation of livestock grazing fees for the use of National Forest System lands in the 16 contiguous Western states and public domain lands administered by the Bureau of Land Management. The bill would also abolish Grazing Advisory Boards and dedicate the use of fees and range improvement funds for restoration and enhancement of fish and wildlife habitat, riparian management and implementation and enforcement of range management plans. Introduced June 6, 1997; referred to the House Committee on Resources.

H.R. 2493 (R. Smith)
Forage Improvement Act of 1997. Directs the Secretary of Agriculture and the Secretary of the Interior to provide for uniform management of livestock grazing on federal lands (except the National Grasslands). As passed by the House, the bill would establish annual grazing fees, authorize cooperative management agreements and specify monitoring procedures. Introduced September 18, 1997; referred to the Committee on Resources, and in addition to the Committee on Agriculture, for a period to be subsequently determined by the Speaker. The House Agriculture marked up the bill and ordered it reported (amended) by voice vote September 24, 1997. The bill was also marked up and ordered reported by the House Resources Committee on October 8 and on October 22, 1997. It passed the House October 30, 1997, by a vote of 242 - 182, and was reported by the Senate Energy and Natural Resources Committee without amendment July 29, 1998.

CONGRESSIONAL HEARINGS, REPORTS, AND DOCUMENTS

U.S. Congress, House. Committee on Resources. Hearing before the Subcommittee on National Parks and Public Lands on Grazing Reductions and Other Issues on BLM Lands. Sept. 30, 1997 in Washington, DC. (Washington, DC: U.S. Govt. Printing Office, 1998.) Serial No. 105-52.

---- Oversight Hearing before the subcommittee on Forest and Forest Health on Livestock Grazing on Public Domain National Forests. April 8, 1997 in Washington, DC. (Washington, DC: U.S. Govt. Printing Office, 1997.) Serial No. 105-19.

---- Hearing before the Subcommittee on National Parks, Forests, and Lands on H.R. 1713, a bill to provide for uniform management of livestock grazing on Federal land, and for other purposes. July 11, 1995 in Washington, DC. (Washington, DC: U.S. Govt. Printing Office, 1995.) Serial No. 104-38.

U.S. Congress, Senate. Committee on Energy and Natural Resources. Hearings on the Department of the Interior's Proposed Rule to Amend the Department's Regulations Concerning Livestock Grazing. April 20, 1994 in Washington, DC and May 14, 1994 in Albuquerque, NM. (Washington, DC: U.S. Govt. Printing Office, 1994.) S.Hrng. 103-655 (Part 1).

FOR ADDITIONAL READING

Gates, Paul. History of Public Land Law Development, written for the Public Land Law Review Commission. (Washington DC: U.S. Govt. Printing Office, November, 1968). See especially, pp. 519-29, and 607-634.

National Research Council, Committee on Rangeland Classification. Rangeland Health, New Methods to Classify, Inventory, and Monitor Rangelands. NRC Board on Agriculture. (Washington DC: National Academy Press, 1994.) 180 p.

U.S. Department of the Interior. Rangeland Reform '94, Final Environmental Impact Statement. Prepared by the Department of the Interior, Bureau of Land Management, in cooperation with the Department of Agriculture, Forest Service. (Washington, DC: U.S. DOI, 1994.) 201 p. (See also Draft EIS, 1994.)

U.S. Department of Agriculture. Grazing Fee Review and Evaluation Update of the 1986 Final Report, report of the Secretaries of Agriculture and the Interior. (Washington, DC: Dept. of Agriculture, Forest Service, and Dept. of the Interior, Bureau of Land Management, April 30, 1992.) 87 p., plus appendices.

U.S. Library of Congress. Congressional Research Service. Changes in Federal Rangeland Management: Current Proposals, by Pamela Baldwin and Betsy Cody. CRS general distribution memorandum. [Washington] September 1995.

----Grazing Fees: An Overview, by Betsy A. Cody. [Washington] May 21, 1996. 6 p. CRS Report 96-450 ENR

----Grazing in National Parks and Other Protected Areas, by Betsy A. Cody. [Washington] May 3, 1994. CRS general distribution memorandum. 3 p.

----Survey of Grazing Programs in Western States, by Pamela Baldwin and Betsy Cody. [Washington] 13 p. CRS Report 96-97 A

.........