Saturday, December 12, 2009

Grazing & Federal Public Lands Law

Grazing and Federal Public Lands Law

Compiled by Laird Lucas

Advocates for the West

1. Congress regulates federal lands: “The congress shall have power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States.” Property Clause, U.S. Constitution, Art. IV, § 3, cl. 2.

2. Grazing on public lands is a privilege, and not a right: See 43 U.S.C. § 315b & 16 (1943 Taylor Grazing Act, stating that grazing preferences "shall not create any right, title, interest, or estate in or to the lands" belonging to the U.S. Government); 43 U.S.C. § 580l (FLPMA similar provision); Omaechevarria v. Idaho, 246 U.S. 343, 352 (1918) ("Congress has not conferred upon citizens the right to graze stock upon the public lands. The government has merely suffered the lands to be so used"); U.S. v. Fuller, 409 U.S. 488, 494 (1973) (grazing permittee does not acquire a property interest in grazing permit); Swim v. Bergland, 696 F.2d 712, 719 (9th Cir. 1983) ("license to graze on public lands has always been a revocable privilege"); Osborne v. United States, 145 F.2d 892, 896 (9th Cir. 1944) ("it has always been the intention and policy of the government to regard the use of its public lands for stock grazing. . . as a privilege which is withdrawable at any time for any use by the sovereign without the payment of compensation"); Diamond Bar Cattle Co. v. U.S.A., 168 F.3d 1209, 1217 (10th Cir. 1998) (permittees "do not now hold and have never held a vested private property right to graze cattle on federal public lands"); Alves v. U.S., 133 F.3d 1454 (Fed. Cir. 1998) (holding that neither grazing permit nor preference is a compensable property interest).

3. A permit or lease is required to graze federal lands: Permits required under the Taylor Grazing Act, which Congress enacted in 1934 in response to the excessive degradation caused by unregulated grazing on the public domain. See 43 U.S.C. § 315(b). The requirement of having a valid permit or lease to graze on BLM lands is reiterated in FLPMA, now the basic statute governing BLM's administration of federal lands. See 43 U.S.C. § 1733(g) (use or occupancy of public lands without permit is “unlawful and prohibited”), § 1752 (addressing permits); NRDC v. Hodel, 618 F. Supp. 848, 857-59 (E.D. Cal. 1985) (discussing FLPMA).

4. Grazing must meet statutory requirements to not harm the environment: Protection of public lands from overgrazing is a key purpose of both FLPMA, 43 U.S.C. § 1701 et seq., and TGA, 43 U.S.C. § 315 et seq. See Public Lands Council v. Babbitt, 120 S.Ct. 1815, 1818-20 (2000) (discussing history and development of public lands law as applying to livestock grazing, BLM’s broad authority to protect public lands from damage due to livestock grazing); 43 U.S.C. § 1701(a)(8) (policy objectives of FLPMA).

When Congress enacted FLPMA in 1976, it mandated that BLM “shall manage the public lands under the principles of multiple use and sustained yield. . . .” 43 U.S.C. § 1732(a). FLPMA defines “sustained yield” as meaning “the achievement and maintenance in perpetuity of a high-level annual or regular periodic output of the various renewable resources of the public lands consistent with multiple use.” 43 U.S.C. § 1702(h).

Under this "multiple use/sustained yield" mandate, BLM must evaluate the suitability of grazing by balancing competing resource values, to ensure that public lands are managed in a manner "that will best meet the present and future needs of the American people." National Wildlife Federation v. BLM, 140 IBLA 85 (IBLA 1997). FLPMA also requires that BLM lands "shall" be managed "in accordance with the land use plans." 43 U.S.C. § 1732(a); 43 C.F.R. § 4100.0-8. See also 43 C.F.R. § 1610.5-3(a) ("All future resource management authorizations and actions . . . shall conform to the approved plan").

5. BLM has regulatory authority to protect the land from overgrazing: BLM regulations impose additional requirements, including that "authorized livestock grazing use shall not exceed the livestock carrying capacity of the allotment." 43 C.F.R. § 4130.3-1(a). The regulations define “livestock carrying capacity” as “the maximum stocking rate possible without inducing damage to vegetation or related resources.” 43 C.F.R. § 4100.0-5. See Idaho Conservation League & WWP v. Steele, Case No. 01-529-E-BLW (D. Idaho).

Under the “Fundamentals of Rangeland Health” regulations must not impair watershed function, riparian habitat, water quality, or wildlife habitat. The FRH regulations require that BLM must revise grazing management “as soon as practicable,” and in any event no later than the start of the next grazing season, upon making determinations that the FRH Standards and Guidelines are not being met upon an allotment. 43 C.F.R. §§ 4180.1 & 4180.2(c); see also Idaho Watersheds Project v. Hahn, 187 F.3d 1035 (9th Cir. 1999) (enforcing this FRH requirement).

BLM’s regulations provide that “appropriate actions” to take in response to FRH violations include “implementing actions pursuant to subparts 4110, 4120, 4130, and 4160 of this part that will result in significant progress toward fulfillment of the standards and significant progress toward conformance with the guidelines.” 43 C.F.R. § 4180.2. Of these referenced subparts, 43 C.F.R. § 4110.3-2(b) expressly provides: “When monitoring or field observations show that grazing use or patterns of use are not consistent with the provisions of subpart 4180 [the FRH requirements] . . . the authorized officer shall reduce permitted grazing use or otherwise modify management practices.” See LU Ranching v. Babbitt v. IWP, No. CV-00-285-EJL (D. Idaho), Memorandum Decision and Judgment entered April 12, 2001(rejecting permittee challenges to BLM decision made under FRH regulations).

See 43 C.F.R. § 4110.3-2(b) (emphasis added). Moreover, it is “[m]andatory” that BLM incorporate into grazing permits “terms and conditions that ensure conformance with subpart 4180 [the FRH requirements].” 43 C.F.R. 4130.3-1 (c). BLM’s regulations further specify that the agency may revise grazing permits and make cuts in grazing based on “monitoring, field observations, ecological site inventory or other data acceptable to the authorized officer.” 43 C.F.R. § 4110.3.

6. NEPA applies to grazing: NEPA obligates all federal agencies to undertake a thorough description and analysis of the environmental consequences of proposed federal actions. 42 U.S.C. § 4332(2)(C); 40 C.F.R. § 1501 et seq.; Robertson v. Methow Valley Citizens' Council, 490 U.S. 332, 336 (1989). Under NEPA, agencies have a duty to prepare a detailed EIS before taking any major federal actions that may significantly affect the human environment. Id.; Foundation for North American Wild Sheep v. United States Dep’t of Agric., 681 F.2d 1172, 1177-78 (9th Cir. 1982); see also Neighbors of Cuddy Mtn. v. USFS, 137 F.3d 1372, 1380 (9th Cir. 1998).

NEPA applies to grazing. Idaho Watersheds Project v. Hahn, __ F.3d __, 2002 WL 31109002 (9th Cir. 9/24/02) (affirming injunction for NEPA violation on 1 million acres of Owyhee Resource Area); N RDC v. Morton , 388 F. Supp. 829 (D.D.C. 1974), aff'd w/o opinion 527 F.2d 1386 (D.C. Cir. 1976).

Updated or supplemental NEPA review is required where changed circumstances or "significant new information" arises after earlier NEPA evaluation is made. See Marsh v. ONRC, 490 U.S. 360, 371-74 (1989) (addressing supplementation requirement); Price Road Neighborhood Ass'n v. DOT, 113 F.3d 1505, 1509 (9th Cir. 1997) ("agency's NEPA responsibilities do not end with the initial assessment; supplemental documentation is at times necessary to satisfy the Act's `action-forcing' purpose").

In the 1995 Rescissions Act, Congress directed the Forest Service to “establish and adhere to a schedule for the completion” of NEPA analyses of new grazing permits for “all allotments within the National Forest System unit for which NEPA analysis is needed.” Public Law 104-19, § 504 (1995). Two courts have now held Forest Service in violation of law for not adhering to Rescission Act schedules. Western Watersheds Project v. Sawtooth National Forest, CIV. 01-389-E-BLW (D. Idaho), June 13, 2002 Memorandum Decision and Order; Greater Yellowstone Coalition v. Bosworth, No. 01-1516, 2002 WL 981147 (D.D.C. May 30, 2002).

7. Endangered Species Act: the ESA provides that all federal agencies “shall utilize their authorities. . . by carrying out programs for the conservation of endangered species,” 16 U.S.C. § 1636(a)(1); and “[e]ach Federal agency shall, in consultation with and with the assistance of the Secretary, insure that any action authorized, funded, or carried out by such agency . . . is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat of such species. . . .” 16 U.S.C. § 1536(a)(2). The consultation requirement applies to grazing. Pacific Rivers Council v. Thomas, 936 F. Supp. 738, 745 (D. Idaho 1996). Watch out for Western Watersheds Project v. Matejko, No. CIV 01-0259-E-BLW (D. Idaho) (challenge to Forest Service and BLM failure to consult over 1000 irrigation and stockwater diversion on Salmon Challis National Forests).

Also, “it is unlawful for any person subject to the jurisdiction of the United States to. . . take any such species. . . .” 16 U.S.C. § 1538(a). See IWP v. Bennetts, Civ. No. 00-729 (D. Idaho) (motion for summary judgment filed June 2002).

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