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Title (dcterms:title)
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Eng
Private Grazing on Public Lands: Uncovering the Struggle Between Dollars and Sense
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Date (dcterms:date)
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2011
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Creator (dcterms:creator)
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Eng
Cearns, Spencer Reed
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Subject (dcterms:subject)
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Eng
Environmental Studies
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extracted text (extracttext:extracted_text)
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PRIVATE GRAZING ON PUBLIC LANDS:
Uncovering the Struggle Between Dollars and Sense
by
Spencer Reed Cearns
A Thesis: Essay of Distinction
Submitted in partial fulfillment
of the requirements for the degree
Master of Environmental Studies
The Evergreen State College
June 2010
This Thesis for the Masters of Environmental Study Degree
by
Spencer Reed Cearns
has been approved for
The Evergreen State College
by
____________________________________________
Tyrus L. Smith
Member of the Faculty
June 9, 2010
© 2010 Spencer Reed Cearns
All rights reserved.
Abstract
Cattle have been grazing on America’s rangelands since the
first settlers ventured westward. While settlements occurred along
rivers and streams; the dryer, less fertile rangelands were used by
ranchers to graze their cattle. As time went on these dry
rangelands became increasingly contested by other land users and
land disputes became common. In 1897 the federal government
stepped in and began issuing grazing permits by charging a fee
administered by the Forest Service, but the permits accounted for
a small portion of the vast lands in the West. Ranchers were still
free to roam their cattle on the majority of public lands. Fastforward to today and the problem of private grazing on public
lands has become a hotly contested problem both financially and
more importantly, environmentally.
This thesis offers
environmentally charged policy-based strategies addressing the
impacts that overgrazing has caused to the arid west, and suggests
a few possible solutions to end the problem. Suggestions are made
as to how the agencies involved can utilize regulations that are
already in place to alter the management of the grazing permit
program in order to bring about ecological change and
environmental remediation of the land. By utilizing the proposal
that would implement a yearly incremental increase in the grazing
fee, as discussed with an eye toward allowing the rangelands time
to recover, the agencies involved could increase the amount of
money taken in by the grazing permit system, and benefit the
environment at the same time.
TABLE OF CONTENTS
Page
List of Figures…………………………………………………………………iv
List of Tables…………………………………………………………………..iv
Acknowledgements……………………………………………………………v
INTRODUCTION/ HISTORY………………………………………………..1
ENVIRONMENTAL IMPACTS……………………………………………….3
Ecological Impacts……………………………………………………4
Forest Health…………………………………………………………..4
Watersheds……………………………………………………………..5
Impacts on Wildlife……………………………………………………7
REGULATIONS………………………………………………………………11
Bureau of Land Management (BLM)…………………………….11
Forest Service………………………………………………………..14
ADMINISTRATION OF GRAZING ON PUBLIC LANDS………………17
BLM and Forest Service……………………………………………17
Permit Fees……………………………………………………………19
Stakeholders………………………………………………………….23
WHAT CITIZENS CAN DO…………………………………………………26
National Environmental Policy Act (NEPA)…………………….27
Limitations to NEPA………………………………………………..32
PROPOSALS………………………………………………………………….34
Selective Retirement of Special Allotments……………………34
Complete Federal Retirement…………………………………….36
Incremental Raising of Grazing Fees……………………………38
CONCLUSION………………………………………………………………..41
ENDNOTES…………………………………………………………………...43
iii
LIST OF FIGURES
Figure
Page
Rio de Las Vacas in New Mexico (Photo 1)………………………5
Location of Federal Lands by Agency (Figure 1 ……………..17
LIST OF TABLES
Table
Page
Fees Charged by Federal Agencies (Table 1…………………..21
iv
ACKNOWLEDGMENTS
First and foremost, I wish to express my undying
appreciation to my family. From my wife Dani who has put up with
my graduate and law school careers, to my parents Dan and
Teresa who instilled in me at a young age that education was not
merely an option, but rather the expected. In addition, I wish to
express my appreciation to Tyrus Smith for his tutelage and
guidance throughout the production of this paper. Last, but
certainly not least, I wish to thank Grandpa Jim, whose belief that
education is the greatest investment one can make in their life has
allowed me to complete graduate and law degrees and to study in
places such as Hawaii and China. Thank you.
v
PRIVATE GRAZING ON PUBLIC LANDS:
Uncovering the Struggle Between Dollars and Sense
The Rise of Grazing in the Arid West1
Cattle have been grazing on America’s arid rangelands ever
since covered wagons brought the first settlers driving westward.
Indeed, environmental historian Donald Worster says it was ―the
invasion [of the West] by millions of head of exogenous horses,
cattle, sheep and goats in the span of a few decades that must
have come with the explosive, shattering effect of all-out war.‖2
As the West was explored, settlement occurred along rivers and
streams where there was fertile soil, abundant vegetation and
where water was easily available. The dryer, less productive,
elevated rangelands remained generally undeveloped, so ranchers
grazed their cattle on hundreds of millions of ―empty‖ acres. But as
the 1800s progressed, even these dry, semi-arid grasslands
became increasingly contested by other land users such as miners,
farmers, outdoor recreationists, homesteaders and even more
ranchers. Land disputes became common. Also, the fragile
rangeland ecosystem was quickly disappearing under hard bovine
hooves and insatiable ruminant appetites.
1
In 1897, the federal government responded by issuing
grazing permits on its forest reserves by charging a fee
administered by the Forest Service—but these permits accounted
for only 3.8 million acres of the vast lands of the West. Essentially,
ranchers were still free to roam their cattle unabated on the
majority of public lands. During this era, the range livestock
producers (i.e., cattle ranchers) formed very effective political
factions, and their interests were served well—even after the
federal government passed the watershed Taylor Grazing Act of
1934 to exert more top-down control of land usage and
stewardship, which had been massively degraded, causing the
Dust Bowl and other environmental concerns. This legislation
created the Grazing Service (precursor to the Bureau of Land
Management or BLM), which established control of grazing on all
public lands.3
This paper is organized and broken down into three major
parts. The first part of the paper will lay out environmental
problems that have been caused by private grazing on public
lands. Through a discussion of the environmental effects that are
the attributable outfall of the grazing permit system, the problems
with the system will be laid out so that later in the paper possible
2
solutions can be addressed. The second part of the paper will talk
about federal regulations and lay the groundwork of how federal
departments administer grazing on public lands, focusing on the
Bureau of Land Management (BLM) and the United States Forest
Service (FS), the two agencies with the largest influence in the
grazing permit arena. In the final section, citizen action will be
discussed and possible solutions to the grazing problem will be laid
out. By the end of this paper it will be shown that the private
grazing on public lands exploitation problem could best be solved
by a yearly incremental increase in the amount of grazing fees
charged by the BLM and the FS. By increasing the grazing fee each
year by 25% of the previous year’s price, the grazing fee will be able
to reach fair market value in just a few years. This would allow for
the BLM and the FS to recoup the expenses of the grazing
program, and also allow ranchers who do not want to pay the
higher fees to either sell their permits to organizations that want to
buy them, or simply let them revert back to the government.
Environmental Impacts of Grazing4
Cattle-grazing in the arid west has widespread
environmental impacts. Conservation biologist Thomas Fleischner
claims that ―livestock grazing is the most widespread influence on
native ecosystems of western North America.‖5 In this section I will
3
discuss environmentally related trade-offs that are made for this
anthropogenic activity. The following sub-categories are but a few
of the major environmental impacts caused by grazing.
Ecological impacts to the lands. The Sierra Club Grazing
Committee states that it ―recognizes that the preponderance of
scientific evidence documents that grazing by non-native species
has led to severe and sometimes irreversible degradation of native
ecosystems.‖6 This large advocacy group is but one of many that
are concerned about livestock grazing and its many impacts, both
environmentally and also economically.
Forest health. Forest stand dynamics are changing for the
worse, due in part to cattle grazing. Livestock presence alters
dynamics of upland forests in the interior West. In particular, the
last 100 years has seen a change from healthy, widely-spaced, firetolerant trees (such as ponderosa pine and western larch)
accompanied by dense grasses on the forest floor, to dense stands
of fire-sensitive (such as different varieties of firs) and disease
susceptible trees. Livestock contribute to this change by
compacting soils which reduces water infiltration rates; by
increasing erosion; by consuming herbaceous plants which
reduces forest floor litter and competition, a negative effect which
4
leads to the dense tree stands listed above. Further, livestock
grazing changes the species make-up of the understory. Livestock
grazing reduces the abundance of fine fuels, which used to allow
low-intensity fires to spread, a normal occurrence in a healthy
forest stand.7 The decline in forest health is one of the many
ecosystem impacts of rangeland grazing.
(Photo 1) Courtesy of Forest Guardians: The Rio de Las Vacas in New Mexico
8
Watersheds. The Sierra Club notes that riparian zones,
which are considered critical areas, are heavily disturbed by cattle
5
(Photo 1). On their Grazing Committee website, The Sierra Club
posits that cattle cause stream sedimentation when they trample
the banks to access water; they eat the vegetation that maintains
the structural integrity of the stream banks; their fecal matter
makes its way into the waterways; and livestock can spread
infectious water-borne diseases through the water supply. Also,
The Sierra Club notes that livestock contribute to spreading ―exotic
weeds‖ or invasive species. The seeds spread through the animals’
fecal matter or plants are transported on the hooves or hides of the
roaming animals. Further, over-grazing by cattle contributes to
desertification in the arid west. Their hooves trample soil and
destroy the soil biocrust, exacerbating the problem of
desertification. Visitors to The Sierra Club website, like busy
policy-makers and their constituents after quick information, may
find this information helpful as a springboard to further research
the science behind the issue. These impacts on the land and
habitat are but a few of the many that are associated with livestock
grazing. As a result, livestock grazing has impacts on wildlife as
well.
6
Biological impacts on wildlife. The Sierra Club goes on to say
that, ―Livestock production is implicated in the decline of [some
fish] species as a consequence of the direct destruction of riparian
and spawning habitat and the indirect affects resulting from water
developments.‖9 Fish are not the only species impacted. Many of
the characteristics listed in the previous section are biological
effects of livestock grazing that impact other local species also.
Conservation biologists and traditional range scientists do
not see eye to eye on the management of rangelands. Range
scientists use the argument of economic gain to allow them to
exploit natural resources in order to continue livestock production
on public lands. On the other hand, there are ecological costs
associated with rangeland grazing. Conservation biologists know of
significant losses to habitat such as the flora and fauna of public
lands like wildlife refuges, wilderness areas, national forests and
national parks:
―These costs include loss of biodiversity, lowering of
population densities for a wide variety of taxa,
disruption of ecosystem function including nutrient
cycling and succession, change in community
organization and change in the physical
characteristics of both aquatic and terrestrial
ecosystems.‖10
7
Sensitive species are adversely affected by cattle grazing.
First, California red-legged frogs are so highly sensitive they are at
risk from anthropogenic activities, including cattle grazing.11
Second, typical bird nest disturbances caused by cattle include
trampling, kicking eggs out, crushing eggs by the cow’s muzzle, or
covering the eggs or nestlings in the nest with a manure pile.
Cattle-grazing also disrupts the bird habitat when they consume
the grass surrounding and protecting the nest. A new study
indicates that cattle-grazing in grasslands disrupts bird habitats in
an unsuspected way. Interestingly enough, this new study
suggests that cows are bird predators. Two wildlife ecologists from
University of Madison-Wisconsin documented cow predation with
cameras near a number of different ground nests. When reviewing
the camera footage the study team saw evidence of cows ―removing
nestlings and eggs from three active ground nests in continuously
grazed pastures in southwestern Wisconsin.‖12 This is a concern
for birders. Birders and ornithologists are what many may think of
as unlikely stakeholders in this issue. Third, livestock production,
if managed improperly, has deleterious effects on fish habitat. If
livestock disturb the riparian buffer around a stream, the
watershed conditions are negatively influenced. Runoff increases,
banks can erode and if manure is concentrated in certain areas
and not managed properly, fish kills can occur. Farmers are
8
encouraged by voluntary government programs to keep riparian
zones out of production or create physical barriers to keep the
livestock out in order to preserve riparian buffers. However, many
do not like the idea of the added expense to install the barriers or
the time and energy required to manage such installments.13 This
is a clash of stakeholders in the hot debate around protecting
stream habitats and land use. Finally, the very fences that farmers
or ranchers are reluctant to put up adversely affect non-aquatic
species. Fences are problematic to wildlife because they affect
natural migration patterns. Ground nesting birds are also at risk
because fences provide more perches for their predators.
There is also another predator-prey concern at play in this
issue. Cattle also become prey to predators. The loss of a head of
cattle to a rancher is a loss of income, and many have a practice of
extinguishing predators when they see them. Predators, coyotes
and wolves in particular, have been destroyed in large numbers in
states like New Mexico and Arizona. The loss of this carnivore,
native to the rangelands, may eventually have drastic biological
effects on the ecosystem. Other animals that are in competition for
the grassland food sources, like prairie dogs, are also extirpated.
The loss of these species is disruptive to the balance that was once
achieved before cattle herds roamed the ranges. At one point in the
9
past history of the arid west, carcasses of buffalo that died of
natural causes were eaten by the rangeland carnivores and
recycled back into the system. Today the buffalo are gone and the
cattle that graze the range are intended for consumption by only
one species: humans. This disrupts the once balanced cycle.14
This section of the paper truly illustrates how everything in
the environment is connected. Anthropogenic activities have an
effect on different systems which in turn negatively impact the
balance the flora and fauna have achieved within. The earth has
balanced systems and attributes, including the water cycle,
ecosystems and the soil of the earth, which are of particular
importance to this case study. We can use scientific observation to
study the effects livestock grazing has on the balance Mother
Nature intends.
The body of scientific literature expresses a concern for the
absence of proper rangeland management. In my view, until there
are enforceable policies and incentive opportunities for all ranchers
to protect the rangeland, we may permanently alter this delicate
balance. With the aforementioned environmental impacts in mind,
we now move on to the agency’s that are responsible for the
majority of the public lands where private grazing is taking place.
10
We will begin by looking at their regulations in order to decide
whether they have the power to alter the issuance or usage of these
regulations, or possibly to revoke them altogether.
Regulations: What kind of power do the agencies really have?
One of the most glaring problems with the environmental
impacts and economic inefficiency of the grazing permit program is
the fact that the agencies overseeing the whole mess have had the
power all along to stop this. The Bureau of Land Management
(BLM) and the Forest Service (FS) have regulations in place that
require them to monitor for both ecological impacts and economic
inefficiency when it comes to grazing management.15 The object of
the resource management planning section in the BLM regulations
is to ―maximize resource values for the public through a
recreational, consistently applied set of regulations and procedures
which promote the concept of multiple use management‖ while
ensuring participation by the public, as well as state and local
agencies.16 With this objective in mind one might wonder why
grazing permits in numerous areas have been used to the point
where there is seemingly irreparable ecological harm that has been
done. Is this considered the maximization of a resource for
multiple uses? If grazing permits lead to unregulated private
11
grazing that destroys tracts of land then that would seem to be a
single use that is rendering the land useless for ALL activities,
rather than the ideal of the land being able to sustain multiple
uses.
BLM regulations also state that there are to be resource
management plans that will provide for public involvement and
take into account not only natural resources, but also the impacts
on local economies.17 These plans are to be based on national level
policy and procedures, and will advise the State Directors and
Field Managers to prepare resource management plans. It seems
as though the regulations are in place for the grazing problems to
have been dealt with internally, but these regulations simply have
not been enforced to their full extent. Field Managers, in
cooperation with the agency, are to collect environmental and
economic data and information and this information is to be used
both to emphasize significant issues in already used lands, and
also to aid in the planning process for future uses of lands.18 Had
the BLM taken the time to conduct and evaluate these
informational gathering procedures, it would stand to reason that
the grazing permits in many areas would prove to be more of an
ecological and economic burden that anything else.
12
The BLM also has another section that deals with the
regulation of grazing on the public lands exclusive of Alaska.19
This section states that the objectives of the grazing regulations are
―to promote sustainable rangeland ecosystems; accelerate
restoration and improvement of public rangelands to properly
functioning conditions; to promote the orderly use, improvement
and development of the public lands; to establish efficient and
effective administration of grazing of public rangelands; and to
provide for the sustainability of the western livestock industry and
communities that are dependent upon productive, healthy public
rangelands.‖20 From the research I have done on this issue it
seems that the only objective being consistently met from the
above list is the last one referring to providing for the sustainability
of the livestock industry. The BLM is not in place simply to
support the cattle industry through the providing of subsidies, but
through the setting of low grazing fees that is essentially what they
are doing.
Land use grazing plans are to be in conformance with the
land use plans that I previously referred to at 43 C.F.R. § 1600,
but it seems in practice this is not always the case. Changes in
the use of allotments that can include the closing of whole
allotments or portions of the allotments are authorized in this
13
section when an authorized officer determines and documents
that, ―the soil, vegetation, or other resources on the public lands
require immediate protection because of conditions such as
drought, fire, flood, or insect infestations, or that continued
grazing uses pose an imminent likelihood of significant resource
damage.‖21 The above sections have laid out the fact that
regulations are in place to ensure that public lands are properly
maintained and cared for, and if it is proven that they are not, the
BLM has the authority to close them to the public.
The Forest Service also has planning regulations in place
that are very similar to those of the BLM. The FS has a land
management planning regulation section that sets out the process
for developing, administrating and amending/revising land
management plans that promotes multiple use goals just like the
BLM does.22 The Forest Service also sets forth an evaluation and
monitoring section that talks about the types of evaluations that
are required for land management planning and how they are
carried out.23 Public participation and a collaborative model
approach to land management are stressed and the interests of the
appropriate agencies, Tribes, State and local governments and
interested and affected communities are to be involved.24 The best
available science must be taken into account in the planning
14
process by FS officials and it should be documented that the
science was appropriately interpreted and applied in the planning
process.25
The Forest Service also has a section of regulations
specifically pertaining to grazing and livestock use on national
forest system lands.26 In this section, much like the BLM section
on grazing, the authority of the FS grazing regulations are set out
and it is stated that the FS is going to ―protect the range resources
and permit and regulate grazing use of all kinds and classes of
livestock on all National Forest System lands and on other lands
under Forest Service control.‖27 The Forest Service will manage
the range environment and allotments will be made and analyzed
with careful consideration and consultation and an allotment
management plan developed.28
The grazing permits are issued
just as the BLM permits, for terms of up to 10 years with priority
for renewal at the end of the term. These permits convey no right
to title in the land, and are essentially land use permits held by the
permittee. The Forest Service also reserves the right to change or
cancel permits for numerous reasons that are set out in § 222.4,
one of which is the permit holder being in violation of ―Federal laws
or regulations or State laws relating to protection of air, water, soil
and vegetation, fish and wildlife, and other environmental values
15
when exercising the grazing use authorized by the permit.‖29 It
seems that both the Forest Service and The Bureau of Land
Management have had the power all along to either amend or
outright cancel grazing permits should they be found to have a
negative environmental impact, yet this hasn’t been happening.
Why have the agencies decided not to step up and cancel
these permits, which aren’t economically efficient (which will be
addressed later) and have been shown to be ecologically damaging?
The power is there for them to act, but if they decide not to use
that power, then it is useless. The final section of this paper will
take into account that the current agency laws aren’t working, and
that something else must be done. Three proposals will be
presented with one final proposal recommended based on my
analysis. Now that it has been shown that the agencies do in fact
have the power to cancel these permits, let’s take a further look
into what these two agencies oversee in the permit system.
The BLM, under the Department of the Interior, and the
Forest service, under the Department of Agriculture, federally
administrate the vast majority of public lands, totaling some 449
million acres (Figure 1).30 Of this land, some 235 million acres are
authorized for grazing permits. The remaining federal agencies
16
(including all branches of the armed services) that hold land and
grant grazing permits constitute about 4 million acres.31 Other
departments issue permits according to different criteria than that
of the BLM. For example, the U.S. Fish and Wildlife Service permits
grazing on a year-to-year basis, depending on a refuge’s land
management goals, while the National Park Service permits grazing
for a longer period but can choose to not renew a permit if certain
conditions change, including damage to park resources, limitations
to interpretive experiences, or impairment of park facilities.
17
The BLM and Administration of Grazing on Public Lands
Grazing is allowed on BLM and Forest Service lands for the
purpose of fostering economic development for private ranchers
and ranching communities by providing ranchers access to
additional forage. Grazing on public lands allows the ranchers’
forage to be replenished during the spring and summer on their
private property. Thus, particularly in the western states, where
federal agencies manage anywhere from 30 to almost 85 percent of
the land, access to forage increases the total forage available to
ranchers, enabling them to increase the number of livestock they
can support and sell. Under The Federal Land and Policy
Management Act of 1976, the Taylor Grazing Act, and the GrangerThye Act, BLM’s and the Forest Service’s permits and leases are set
for not more than 10 years and can be renewed without
competition at the end of that period, which gives the permittee or
lessee a priority position against others for receiving a permit or
lease—a position called ―preference.‖ While ranchers have
preference, they do not obtain title to federal lands through their
grazing permits and leases, nor do they have exclusive access to
the federal lands, which are managed for multiple purposes or
uses.32
18
Historically, however, the BLM has shown preference toward
the livestock industry and given it free range of vast public land
holdings, which creates a ―tragedy of the commons‖ degradation
situation. Indeed, The Wildlife Service has claimed that BLM’s
rules are so friendly to livestock grazing interests that the agency’s
―rules could or would damage wildlife, water supplies,
streamside areas, vegetation and endangered species … and
would tend to give grazing a higher priority than other uses,
remove the public from the decision-making process, and
give away public rights on public land.‖33
Permit fee amounts and agency costs34
The Forest Service and BLM’s set fee for graze permits is a
result of an executive order, which currently sets the fee at $1.35
per AUM (Animal Unit of Measure). An AUM is calculated as a
months use and occupancy of the range by one animal unit which
includes one yearling, or one cow and her calf, one horse, or five
sheep or goats. In 2009 there were approximately 18,000 BLM and
8,000 Forest Service grazing permits.35
The low fee enables ranchers to stay in production by
keeping fees low to account for conditions in the livestock market.
Most other federal agencies generally charge a fee based on
competitive methods or set to obtain a market price for the forage
19
on their lands, and some of them also seek to recover expenditures
for their grazing programs. Similarly, state land offices in the 16
western states and private ranchers seek market value for grazing
on their lands.36
If the BLM and the Forest Service were to charge a fee for the
purpose of recovering their expenditures, they could have charged
up to $7.64 per AUM and $12.26 per AUM, respectively, in 2004.37
If they were to charge a market-based fee, the fee could vary but
would likely not equal private or state fees. Federal grazing fees are
considered user fees, like those charged at recreational sites such
as federal parks and forests. User fees differ from broad-based
taxes in that they attempt to recover some amount of the
government expenditures made for a specific program. In terms of
grazing fees, the revenue amounts generated from grazing fees vary
by agency and are used to support expenditures related to grazing
activity. In 2004, the BLM and Forest Service collected about $17.5
million in grazing fees, or 83 percent of all grazing receipts that
federal agencies collected ($21 million).
From the total grazing fee amount collected, federal agencies
distributed almost $5.7 million to states and counties, deposited
almost $3.8 million in the federal treasury as miscellaneous
20
receipts, and deposited at least $11.7 million to separate treasury
accounts to be further appropriated or used by the agencies for
their various programs—including range improvement.38 As you
can see, grazing permits help fund many public programs in
economically starved areas of the rural West. Unfortunately, total
revenues from grazing permits accounted for only one-sixth of the
expenditures needed to manage these rangelands. The remaining
cost of maintaining this system of public land welfare for ranchers
is passed on to the general public tax treasury. Because of these
low fee amounts, the BLM implicitly acknowledges its primary
responsibility and accountability is to range livestock producers.
-Source: BLM & Forest Service (data): GAO (analysis)
21
There is no doubt that this current system encourages
ranching on areas that would not be financially viable were it not
for this system of costly ranching subsidies. The final outcome
enables ranchers to graze arid areas of the West that are not
normally financially viable. The romantic vision of the rugged, selfreliant, individualist rancher is in fact largely an illusion. But how
was this system created? Stockmen have always been a small
fraction of the overall population, but in spite of their small
numbers, range livestock producers exert a powerful influence over
government within their states and over Congressional
delegations—the Senate, especially. One reason for this is that
relatively unpopulous range livestock regions account for
approximately one-third of the total Senate membership, thus
westerners generally wield disproportionate influence in the
Senate. Furthermore, ranchers’ influence with the BLM is
enhanced by the BLM’s structure. Because the agency is organized
by state offices, rather than multistate regional offices, power in
the BLM is highly concentrated in the state directors, and the state
directors’ power base is in turn strongly entrenched in state and
local interests still heavily influenced by the grazing industry.39
22
Stakeholders
The era of cattle grazing favoritism is beginning to be
reconsidered. Increasingly, the interests of other public lands
stakeholders are being debated by an increasingly environmentally
aware electorate, public advocacy groups, media and politicians.
These groups have disparate interests, too. A few of these groups
include:
Recreationists;
Conservatives;
Tax payers;
Conservationists and environmentalists;
And even ranchers.
Indeed, federal subsidies given to range livestock producers
have created an enduring stamp on how we romanticize and use
the West. Grazing permits (which, remember, are nothing but user
fees for public lands) can be sold as other use permits—including
as conservation easements to take overgrazed rangeland out of
use. Below, I will present the position of each interest group listed
above.
23
Recreationists. Over the past few decades, recreation on
public lands has increased steadily. This interest group ranges
from hikers to mountain bikers; from birders to hunters.
Economically, in 2006, hunters, anglers and wildlife watchers
spent over $7 billion in the Rocky Mountain States, and nonmotorized outdoor recreation generated over $22 billion in
economic activity.40 Interest groups include grassroots advocacy
groups, as well as wilderness interest groups such as the Sierra
Club.
Conservatives. While the idea of the rugged, individualist
cowboy is largely a myth, traditional conservative values are still
very important to the West. There is growing pressure from
conservatives to end the system of cheap BLM user fees that
enable ranchers to become a drain on taxpayer dollars. This is the
idea behind Republicans for Environmental Protection America, or
REP America, headed by Rob Sisson.41 This group advocates
political reform based on traditional conservative republican
principles of financial prudence and minimal government
assistance. Sisson speaks for many traditional conservatives who
feel a free market is integral to reducing government waste of
revenue and to maximizing market efficiency.
24
Concerned tax payers. As explained above, range livestock
grazing on public lands benefits only the private rancher, at the
expense of all tax payers. Those who are concerned about the
amount of tax revenue spent on this subsidy form an interest
group that votes. But in order for this faction to become effective,
the voter must be informed and concerned. Politicians are only
held accountable when an informed and concerned electorate votes
for their best interests, instead of conceding an issue to a vocal but
small faction of ranchers. Ranchers have historically had good
representation by state politicians, but because the majority of the
West’s population now lives in urban centers, this representation
is being challenged by tax payers that want to redirect the
allocation of their tax revenue.
Conservationists and Environmentalists. While the effects
of heavy cattle grazing in arid rangelands have been known for at
least a century, only recently has the economic paradigm of
grazing been challenged. Conservationists are ultimately concerned
about restoring the fragile western ecosystems, but they have been
using new tactics. There is a growing movement to buy out active
grazing permits and permanently retire them from the market into
conservation easement-style perpetuity. This movement entails
giving ranchers money to take grazing permits out of circulation.42
25
Ranchers. Grazing on arid western lands will always exist,
and co-exist, with other interests. There is a very useful need and
justifiable industry that validates the inclusion of cattle grazing on
western public lands. Ranchers still have a powerful voice with
politicians, too. But other factors such as international
competition, increasing costs of feed and other animal inputs,
climate change and drought all have compounded the ranchers’
difficulties. In fact, many ranchers are retiring from the livestock
industry, citing the factors above. Low grazing fees are essential if
many ranchers hope to continue in the livestock industry, so
attempts to tighten BLM regulations to raise fees always face
staunch resistance from the livestock interest groups such as the
Cattlemen’s Beef Association, and politicians from ranching
districts are very hard to persuade.43
So Where Do We Stand and What Can We Do?
The environmental impacts of livestock grazing on publicly
owned federal lands are something that have been highly contested
for many years. Despite the contestations, and the fact that the
agencies have seemingly had the power to regulate the grazing all
along, the impacts have remained virtually unchanged. The last
26
part of this paper outlines ways in which the common citizen can
have a voice and possibly bring about change in this arena. While
livestock grazing on public lands has widely been criticized for
being virtually impossible to stop by people not directly involved
with the process, there are certain ways that the average person
can get involved and have their voice heard. This final section will
address a major avenue for public comment, and wrap up by
bringing the reader up to speed with the current state of affairs in
this hotly contested issue.
The National Environmental Policy Act (NEPA)44
Livestock grazing management on publicly owned federal
lands is periodically opened up to public review and participation
during a National Environmental Policy Act (NEPA) review. During
a NEPA review, a federal agency proposes a management activity
for federal land (such as the issue or renewal of grazing permits).
Then, at various stages, it invites public comment on the proposal
and alternative proposals. The agency is then required to analyze
each proposal in the context of the public comments that it
receives. As a citizen, a NEPA review provides you with your most
important opportunity to impact public lands livestock grazing at a
27
site-specific or regional level. If you are well prepared, you can use
this process to work toward your goal of reducing the adverse
environmental impacts that are often caused by livestock grazing.
One of your goals in this public comment process should be to
garner social pressure in order to try and induce the managing
agency (usually, the BLM or the U.S. Forest Service) to make a
resource-protective decision at the end of the formal NEPA review.
If you get such a decision, then there is no need to appeal to a
higher level. Unfortunately, you must often appeal the agency's
decision, as this step is required before a lawsuit can be filed. If
your appeal is granted then changes to the project may be required
or the project may be thrown out entirely. In that case, your efforts
would have saved you from having to resort to litigation in order to
achieve your goal. The appeal officer may also reject your appeal,
and in that case your only recourse is litigation.
While it may be difficult to get an agency to make
conservation-oriented decisions, it is not impossible. Assume going
into this process that you will not get that resource-protective
decision from the agency that you desire. Assume that the agency
will make a bad decision that you will need to appeal, that your
appeal will be denied at the higher levels of the agency or
government, and that you will need to sue the agency later.
28
However, if you mobilize a great deal of support for your positions,
build coalitions with other local environmental groups and submit
numerous well thought out comments from the start, you might
get lucky and the land may receive the protection it needs at the
end of the NEPA process.
The NEPA Process and Your Role in It
The NEPA process is essentially broken into five stages:
Scoping, The Issuance of the Environmental Impact Statement
(EIS) or Environmental Assessment (EA), Final Decision, Appeal
Process, and finally Litigation. The final two stages can be brought
about by the public in cases where they are not happy with the
agencies final decision.
The first stage of the NEPA process is called the ―scoping‖
stage. In this stage, the agency usually proposes a single
management plan for consideration. After the plan is proposed the
public is asked for their comments. Usually, no significant analysis
of the plan or existing resource conditions on the allotment is
provided at this stage. Public comment is very hard at this stage.
Comments often stress the procedural requirements that the
29
agency must follow, suggest what topics or significant issues the
agency should deal with, how to deal with such topics, what biases
to avoid in addressing such topics, what alternatives should be
considered, etc. The agency is especially looking for information
that you know that they may not know (rare flower locations,
sightings of, and locations of, rare animals). If you have this kind
of information, you should certainly submit it. After the agency
collects the scoping comments and completes their analyses they
can begin stage two.
Stage two involves the agency issuing either an
Environmental Assessment (EA) or an Environmental Impact
Statement (EIS). It is at this stage that public comments are the
most effective. You need to challenge any faulty analysis or claim
that is being used by the agency to justify plans to continue or
expand livestock grazing. You can present alternatives to the
agency’s proposed action that would lessen the adverse impacts
that you believe would likely be generated by implementation of the
agency's preferred proposal. By utilizing field data, peer-reviewed,
published scientific articles, favorable court decisions, and any
other "best available information" (or ―best available science‖) you
can prod the agency into modifying its preferred proposal so that
the adverse impacts likely to be generated will be lessened
30
substantially or eliminated altogether. Comments at this stage are
critical because the ones you make at this stage (along with those
made during the scoping stage) will largely determine the issues
you can raise effectively in future appeals and litigation concerning
the final decision made by the agency.
After an agency has made a final decision (stage three), the
public then has a period of time in which to file an appeal (stage
four). After reviewing the responses to the public comments, you
need to determine the adequacy of their responses and decide what
you wish to attack in your appeal. The more claims you have that
are supported by data and articles, the more intimidating your
appeal looks, and the more likely you will be to succeed in winning
an appeal. If your appeal is rejected by the agency, then you need
to decide whether or not you want to challenge the agency’s final
decision and appeal rejection through litigation (stage five). At this
point you need to take a very close look at whether or not the
agency has violated any environmental laws, and what your
chances are should you take them to court. This is the final stage
of the NEPA process, and if you decide not to take the issue to
court, then for the moment your course of action is over.
31
Limitations to NEPA
While NEPA is the best way for public comments on this
issue, there are a number of limitations to the actual process.
These limits include the following:
1) NEPA’s broad public participation requirements apply
when an EIS is required, not when EA’s are prepared – which is
the level of review for approximately ninety-nine percent of projects
subject to NEPA.45
2) NEPA only requires analysis of social and economic
impacts in limited circumstances.46
3) NEPA does not impose any substantive obligations on
federal agencies, mandating that agencies consider and fully
disclose the environmental impacts of proposed projects. The
Supreme Court has explained that NEPA, ―merely prohibits
uninformed—rather than unwise—agency action.‖47
While the NEPA process may seem somewhat ―flimsy‖, it is
also the best thing available to the average citizen in that it at least
offers the public a voice through the comment stages when an EIS
was issued. That was until August of 2007, when there was a
recent policy change at the Bureau of Land Management. The BLM
32
created eight new ―categorical exclusions‖ designed to speed up the
approval process for a slew of activities on public lands, including
grazing, logging, oil and gas drilling and recreational use.48 One of
the major changes is the paring down of the renewal process of the
roughly 18,000 grazing permits the agency administers. In the past
the BLM was required to conduct a formal EA and call for public
comments under NEPA when a permit was up for renewal. Now
under the new guidelines , if the allotment appears to be in good
shape and the permit is being renewed for roughly the same use as
before, the agency may approve the renewal without a rigorous
assessment — or formal public comment.49 This would worry any
environmentalist. The BLM has essentially circumvented the only
real public ―check‖ on the issuance of their grazing permits, and
left no other avenue for comment. With large numbers of permits
able to be fast-tracked every year, it seems as though there is no
other way to stop the grazing than to buy the permits from the
ranchers themselves and recently conservation groups have
attempted to do just that.
Since only Congress can approve a permanent retirement of
grazing allotments, and the legislative odds of getting something
passed that would entail a federal buyout are very slim, it seems
that the only recourse is the public purchase of private cattlemen’s
33
permits. While this may sound like a simple solution, you have to
take into account that you are essentially taking away these cattle
owner’s livelihood, and that could be a very expensive and time
consuming process. In the end, it seems as though there are many
valid reasons why we should limit livestock grazing on publicowned lands, but that there are simply too few ways to go about
getting it done.
Proposals
While there could arguably be many different ways to
approach the problem of private grazing on public lands, it seems
as though there are three main remedies that could possibly solve
this environmental disaster.50 The remedies are: selective
retirement of special allotments of grazing permits, a complete
federal retirement of all grazing permits, and finally the
incremental raising of the grazing fee. This next section will talk
about the pros and cons of each of these.
Selective Retirement of Special Allotments: Under the
idea of selective retirement a rancher that has a grazing permit
would be able to sell that permit to say, an environmental
34
organization, which would pay him a average AUM fee that was
well over the private fee average. This would allow for the rancher
to make money off his permit one last time before essentially
allowing the permit to be retired. Once the permits were
purchased from the rancher the organizational would then petition
either the BLM or the Forest Service (depending on who he has the
permit with) to not allow the permit to be reissued. Only Congress
can officially retire a grazing permit, but the governmental agencies
have already been receptive to the idea of selective retirement of
permits that have been purchased with the idea that they will
never again be issued.
The main problem with the idea of selective retirement is
that the ranchers have to agree to sell their permits off, instead of
keeping them. Ranchers have been reticent in the past of allowing
their permits to all into the hands of ―non-ranchers‖, and some
would rather die than see the lands not able to have cattle on
them. Since the selective retirement idea would mostly be made
up of environmental organizations that would have to raise the
money to buy the permits, some ranchers may be turned off by
their proposals. Another major problem with the idea of selective
retirement is the fact that the process would take many years to
accomplish. Ranchers are not going to let go of their permits
35
cheaply, and so someone is going to have to come up with big
money to pry them away. While it is true that environmental
organizations have a way of raising money for worthy causes, it
may take tens of years before all of the permits that include
environmental at risk land are bought back. Another smaller
problem could be the process of deciding what permits are
purchased first. While it should be fairly easy to decide what lands
are more environmentally at risk than others, who is to say that
the permit holders of those lands would sell? Do you spend years
trying to pry away permits from a rancher with no intent of ever
selling that has high-risk land inside his permit, or do you go for
the low-hanging fruit and buy up all the easy to obtain permits you
can first?
Complete Federal Retirement: Under the idea of a
complete federal retirement of grazing permits no new permits will
be issued, and when the current ones run out then the permit
holders are simply reimbursed for the value of the permits they
held. In recent Congresses there has been legislation introduced
that intended to buy out grazing permit holders. For example, H.R.
3166 in the 109th Congress provided that permittees who
voluntarily relinquished their permits would be compensated at a
rate of $175 per AUM, estimated at more than twice the market
36
rate.51 Under that bill the allotments, once sold back, would have
been permanently closed to grazing. Legislation like this is back
by environmental groups such as the National Public Lands
Grazing Campaign, as a way to enhance protection of the lands,
attempt to resolve conflicts between grazing and other land uses,
and finally as a way to provide economic options to the current
permit holders that they might not otherwise have.
The biggest problem with a national buyout is would be the
cost. According to proponents, a national buyout program could
cost upwards of $3.1 billion if all permits were relinquished. While
it could be said that the program would save more than that
amount of money over time, that is a lot of money to spend all at
once, especially in the current economic climate. Notwithstanding
the obvious monetary issues that a proposal such as this would
face, one should also take into account the fact that legislation
such as those would have to pass in Congress, and those who
support grazing would probably be against this. It would seem
that a very expensive program that also would put an end to a lot
of grazing in the west would not be very well received in numerous
districts all over the great country.
37
The Raising of Grazing Fees: The third and final proposal
is the idea of an incremental raise in the grazing fees over the next
few years in order to lift the price per AUM to a level that not only
represents a number closer to the fair market values, but one that
allows for the BLM and FS to at least cover their expenses. The
Public Range Improvement Act (PRIA) formula, established in
1978, set forth a policy of charging a grazing fee that was equitable
and would prevent disruption and harm to the livestock industry.
The law requires that the grazing fee charged by the FS and BLM
be set annually. Congress also established that the fee adjustment
would not exceed 25% of the previous year’s fee. That being said,
the current fee is set at $1.35 for 2009, but could potentially be
raised 25%, up to $1.68 for 2010. By increasing the fee an
addition 25% for say, the next 10 years, you would enable the fee
to rise to rise to a level where ranchers either agreed to pay the fair
market value, or would relinquish their permits. At this point
environmental groups could then purchase the permits, or possibly
the agencies would simply choose to not issue them anymore.
While this proposal would take some time to ―weed out‖ the
ranchers who do not want to pay fair market value for their
permits, it is a process that would not cost additional dollars to
conservation groups or the federal government. By increasing the
38
fee you are simply allowing permittees to decide how much these
permits are really worth to them. This proposal does not force the
ranchers to give up their permits, and also does not allow for them
to request outrageous sums of money for the transfer of them
either. Under the fee raising scenario everyone gets to decide how
much they are willing to pay to keep using the permitted land. I
feel as though this proposal would be in the best interest of all the
parties. The agencies are allowed to move closer to breaking even
on the grazing programs, high-risk lands that are not worth high
priced permits will be allowed to be ―retired‖ by agencies when
permits are not renewed by ranchers unwilling to pay higher fees,
and the neither the government nor conservation groups are
required to open their pocketbooks.
The Raising of Grazing Fees proposal would be fairly easy to
implement in that Congress has already established that the
annual fee can be increased by 25% of the previous year’s fee.
Since it is already permitted, all that would need to happen is that
the Secretaries of Agriculture and the Interior set next year’s fee
25% higher than this year’s fee. Now of course livestock grazers
will be upset that the fee is increasing, but they are still paying
less than fair market value for the permits, so they do not have all
that much room to complain. In a few years the fee would rise to a
39
level where it would be near market value, and at that point it
would stand to reason that fewer permittees would be willing to
pay the grazing fee, and as such their permits would run out. The
raising of the fee could be stated to help in numerous ways. The
first way, as has been mentioned already, is that an increase in the
fee would help to increase the price to fair market value. The
second way that an increased fee would be a benefit is that it could
help to attribute to cost recovery by the agencies. As stated earlier,
the BLM and FS pay out a lot more than they take in as they
administer their respective grazing programs. An increased fee
would help to offset their costs while allowing them to maintain, or
even increase the amount of care that they give to the permitted
lands. The final way that an increased fee could be seen to help
would be that those ranchers that are really into it for the long
haul would simply pay the increased fee and go about their
business, and the permittees that are simply in this for a payout
would step aside.
40
Conclusion:
In summation, the current state of private grazing on public
lands is at a point where the environmental and economic costs of
the practice far outweigh the benefits. Something must be done in
order to tip the scales toward equity. Environmental degradation of
the public lands is increasing at an alarming rate, and the low
grazing fee paid by the permittees does not allow for the agencies
to even break even on the grazing program’s costs, let alone allow
for them to put extra money into making sure that the ecosystems
are being properly maintained or protected.
While the problem is not going to fix itself, there are
proposed solutions that would allow for change to take place. The
most appropriate proposal to begin to right this environmental
wrong is by an incremental increase of the current grazing fee.
This increase would allow for the fee to approach fair market value
and also allow for the agencies to recoup expenses and invest more
into environmental protection of their lands. The increased fee is
not a governmentally implemented taking of the ranchers’ permits,
nor is it a type of selected retirement that third parties would have
to pony up money for. The increased fee simply allows for those
who really value the permits to keep using them as they have been,
while allowing others to step aside when their benefit does not
41
outweigh the burden of the increased fee. Once the permits are no
longer used for grazing they could either be transferred or sold to
say an environmental group, or returned to the agency with the
idea that the agency would no longer lend that area out to grazing.
Something must be done in order to help protect public
lands in the west from the environmental abuses associated with
private grazing. It has gotten to a point where the ranchers have
seemingly grown so strong that the environment no longer means
anything to them other than something that must be used up as a
way to make money. This cannot continue as it has for the past
100 years. The implementation of an incremental increase to the
grazing fee will be an easy way to begin the movement toward the
retirement and repair of ecosystems that have been damaged by
the grazing process. When I think about what must be done to fix
the problem of private grazing on public lands I wonder who
should really be in charge of fixing it. Should the BLM be upset
about the fee? What about the Forest Service? If these agencies
do not feel as though they can change what is going on then I feel
as though if not us, then who, and if not now, then when?
42
Endnotes:
1
For the purposes of this thesis, the “West” or “Arid West” consist of the areas of the following
states: Washington, Oregon, Idaho, California, Wyoming, Nevada, Arizona, New Mexico, Utah,
Colorado, Montana, North Dakota, South Dakota, Nebraska, Kansas, and Oklahoma
2
Worster, Donald. Under Western Skies: Nature and History in the American West. New York:
Oxford University Press, 1992.
3
Donahue, Debra L. The Western Range Revisited: Removing livestock from Public Lands to
Conserve Native Biodiversity. University of Oklahoma Press: Norman, 1999.
4
The majority of the environmental impacts discussed in this paper have been brought to light
previously by The Sierra Club which has a page devoted to grazing here.
http://www.sierraclub.org/grazing/
5
Fleischner, Thomas L. “Ecological Costs of Livestock Grazing in Western North America.”
Conservation Biology 1994. 8(3): 629-644.
6
The Sierra Club “Grazing: impacts of livestock production on public lands-ecological impacts”;
www.sierraclub.org/grazing/livestock/ecological.asp
7
Belsky, A.J. et al. “Effects of livestock grazing on stand dynamics and soils in upland forest of
the interior West.” Conservation Biology, vol 11 pp 315-327.
8
http://www.cpluhna.nau.edu/Change/grazing.htm
9
www.sierraclub.org/grazing/livestock/ecological.asp
10
Fleischner 1994
11
Fellers, Gary M. et al. “Diurnal versus nocturnal surveys for California red-legged frogs.”
Journal of Wildlife Management, Dec 2006. vol 70 (6) pp 1805-1808
12
Nack, Jamie L. et al. “Apparent predation by cattle at grassland bird nests” The Wilson Bulletin,
Mar 2005 vol 117 (1) pp 56-62
13
Lyons, J. et al. “Influence of intensive rotational grazing on bank erosion, fish habitat quality,
and fish communities in southwestern Wisconsin trout streams” Journal of Soil and
Water Conservation, Third quarter 2000. Vol 55 (3) pp 271-276.
14
Freilich, Jerome E. et al. “Ecological effects of ranching: A six-point critique” Bioscience, Aug.
2003. vol 53 (8).
15
(BLM: 40 C.F.R. § 1600 : FS: 36 C.F.R. § 219)
16
40 C.F.R. § 1601
17
43 C.F.R. § 1601.0-8
18
43 C.F.R. § 1610.4-3
43
19
43 C.F.R. § 4100
20
43 C.F.R. § 4100.0-2
21
43 C.F.R. § 4110.3-3(b)(1) i-ii
22
36 C.F.R. § 219.1
23
36 C.F.R. § 219.6
24
36 C.F.R. § 219.9
25
36 C.F.R. § 219.11
26
36 C.F.R. § 222
27
36 C.F.R. § 221.1
28
36 C.F.R. § 222.2
29
36 C.F.R. § 222.4(6)
30
United States Government Accountability Office. Livestock Grazing: Federal Expenditures and
Receipts Vary, Depending on the Agency and Purpose of the Charged Fee. GAO-05-869.
September 2005.
31
Id.
32
Id.
33
Davis, Tony. “New grazing rules ride on doctored science.” High Country News, July 25, 2005.
34
See Table 1 on pg. 21
35
http://www.blm.gov/wo/st/en/info/newsroom/2009/january/NR_01_30_2009.html
36
GAO Report 2005
37
Id.
Id.
38
39
Donahue, Debra L. The Western Range Revisited: Removing livestock from Public Lands to
Conserve Native Biodiversity. University of Oklahoma Press: Norman, 1999.
40
Haefele, Michelle; Morton, Pete; Culver, Nada. “Natural Dividends: Wildland Protection and
the
Changing Economy of the Rocky Mountain West.” The Wilderness Society, 2005.
www.wilderness.org/Library/Documents/NaturalDividends.cfm
41
42
http://www.rep.org/policy/publiclands.html
Reese, April. “The Big Buyout.” High Country News, April 4, 2005.
44
43
44
Hoekenga, Christine. “Free Range.” High Country News, September 7, 2007.
42 U.S.C. 4321-4370
45
Johnson, Stephen. “NEPA and SEPA’s In the Quest for Environmental Justice.” 30 Loy. L.A.
L.
Rev. 565, 575 (1997).
46
43 U.S.C. § 4331(a)
47
Robertson v. Methow Valley, 490 U.S. 332, 351 (1989).
48
Hoekenga, Christine. “Free Range.” High Country News, September 7, 2007.
49
Id. See below links for PDF Documents
http://www.blm.gov/pgdata/etc/medialib/blm/wo/Planning_and_Renewable_Resources/planning_i
mages.Par.0459.File.dat/Grazing_CX_Analysis_Additional_CX.pdf.
http://www.rangenet.org/trader/GrazingCX07/Guidance%20on%20the%20Use%20of%20a%20N
ew%20CEs%20for%20Grazing.pdf.
50
Various proposals are discussed both on The Sierra Club grazing site
(http://www.sierraclub.org/grazing/) and also in a CRS Report for Congress
(http://ncseonline.org/NLE/crs/abstract.cfm?NLEid=185)
51
CRS Report for Congress. Grazing Fees: An Overview and Current Issues,
http://ncseonline.org/NLE/crs/abstract.cfm?NLEid=185
45
cearns_srMES2010.pdf