Court halts and lambastes BLM's new "and improved" grazing regulations

Court halts and lambastes BLM's new "and improved" grazing regulations

A June ruling by the Federal District Court of Idaho stopped implementation of new (2006) grazing regulations by the U.S. Bureau of Land Management (BLM), reports the Wildlife Management Institute.

The BLM, which manages grazing on nearly 160 million acres of public rangeland, with use authorized by approximately 18,000 permits and leases on about 20,600 allotments, claimed that the new regulations would improve grazing management and promote stability of ranching on public lands. To the contrary, U.S. District Judge B. Lynn Winmill harshly criticized the agency's process and determined the BLM's new regulations to be in violation of the Endangered Species Act (ESA), National Environmental Policy Act (NEPA) and Federal Land Policy Management Act (FLPMA).

The new regulations amended 1995 regulations that the livestock industry claimed were too restrictive. The major objectives of the new regulations ostensibly were to improve the agency's working relationships with public land ranchers, conserve rangeland resources and address legal issues while enhancing administrative efficiency. The final regulatory changes were to take effect on August 11, 2006. However, the court immediately enjoined them until thorough judicial review could occur.

In his analysis, Judge Winmill wrote, "[The 2006 regulations] limit public input from the non-ranching public, offer ranchers more rights on BLM land, restrict the BLM's monitoring of grazing damage, extend the deadlines for corrective action, and dilute the BLM's authority to sanction ranchers for grazing violations."

The court specifically cited comments on the new regulations by the U.S. Fish and Wildlife Service (FWS), the agency with which the BLM is required to consult, by virtue of the Endangered Species Act, if land-management changes could have negative impacts on threatened or endangered species. The BLM concluded that its new regulations largely are clarifications of the 1995 regulations or bring those previous regulations into compliance with court rulings. The FWS disagreed, stating that the new regulations would "fundamentally change the way BLM lands are managed temporally, spatially, and philosophically. These changes could have profound impacts on wildlife resources."

In addition, the new regulations ignored an analysis of the BLM's own team of scientists, which concluded that the changes would have a "slow long-term adverse effect on wildlife and biological diversity in general." The court observed that "the BLM moved with extraordinary speed to reject the substantial [interdisciplinary team] criticisms" by publishing the proposed regulations just three weeks after the team's administrative review was received.

Within the new regulations, provisions designed to improve working relationships would have allowed shared title to any range improvements-such as fences, wells, pipelines, etc.-that were constructed under cooperative range improvements agreements. For example, fence lines across public lands would have become essentially private property, calling into question the impacts to access to public lands across the fences. In addition, the regulations would have removed an existing requirement that livestock water rights on BLM land are to be acquired in the name of the United States and not in the permittee's name.

The provisions also focused on using only monitoring data, as opposed to all available data, in determining when a grazing allotment is failing to meet rangeland health standards and extending the deadline for corrective action. The final rule would have given the BLM two years to adopt a new grazing decision after a violation and an additional year to implement the decision. Under the 1995 regulations, BLM is required to take corrective action as soon as practicable but no later than the next grazing year. In addition, if a grazing reduction of more than 10 percent were needed to correct the violation, the new regulations would have allowed the reduction to be phased-in over five years unless the permittee agreed to make the changes in a shorter time period.

In an effort to streamline the public-participation process, the new grazing regulations would have modified the definition of "interested publics" and narrowed the BLM's obligation to consult, cooperate and coordinate with the interested publics. Previously, an individual or group that submitted a written request to be involved in the decision-making process on a specific allotment would be added to the list of "interested publics" and notified of issues concerning the allotment. Under the new regulations, the individual or group would have been dropped from the list if notice was received but no comment provided. In addition, the BLM would no longer have had to consult, cooperate and coordinate with interested publics on adjustments to allotment boundaries, changes in active use, emergency allotment closures, issuance or renewal of individual permits or leases, and issuance of temporary nonrenewable grazing permits and leases. The court ruled that these changes violated NEPA, because the BLM was deemed not to have considered or justified adequately why public participation should be more limited than in the 1995 regulations.

The injunction against the new regulations will be in place until the BLM proceeds with consultation under the ESA and takes the "requisite hard look" at the environmental impacts under NEPA. (jas)

July 08, 2007