DuBois column: BLM Travels, but grazing preferences don't

  

BLM travels, but grazing preferences don’t

BLM heads east

Secretary uf Interior Deb Haaland recently announced her decision to move BLM headquarters back to DC. The Trump administration had relocated the headquarter to Grand Junction, Colorado. 

We all knew this was coming. In fact, I’m surprised it took this long.

The only intrigue was what rationale(s) would they use to justify the decision.

Let’s take a look at some of the public statements followed by my analysis.

The move "failed to deliver promised jobs across the West and drove hundreds of people out of the agency." ~~ Interior Dept.

When did it become the statutory mission of the BLM to create jobs?

"There's no doubt that the BLM should have a leadership presence in Washington, D.C. -- like all the other land management agencies -- to ensure that it has access to the policy-, budget-, and decision-making levers" ~~ Haaland

I’ve written before of BLM’s jealousy towards the Forest Service and other land management agencies. Here it is again with them wanting a Washington headquarters “like all the other land management agencies.".

In the end, budgets determine policy and many decisions, so clearly this is about money and BLM's access to it.

The headquarters transition will be conducted with a goal of minimizing further disruption to employees and their families. ~~ Haaland

The past several years have been incredibly disruptive to the organization, to our public servants, and to their families. ~~ Haaland

This is more about BLM prestige, acquiring larger appropriations and being "nice" to federal bureaucrats than it is about bringing efficient, effective and professional management to our federal lands.

It appears my expressed views of this whole thing have unfortunately come true. My concern was that time, money and political capital would be spent on this move, rather than focusing on our real problems by revising the Endangered Species Act and NEPA. The headquarters is back in Washington and those statutes stand unchanged

Permits and preference

You have four BLM grazing allotments. BLM cancels your grazing permits in whole or in part, based on noncompliance and not being in good standing, but says nothing about the grazing preference assigned to each allotment. You then lease the private land (base property) in your allotment to a third party, who then files for the grazing preference on your allotment. The BLM denies the request, you appeal but the Interior Board of Land Appeals (IBLA) affirms the BLM decision and you sue.

That is a loose summary of the legal happenings of Hanford Ranches in southern Idaho. There were other decisions and appeals in this case, but here I will focus on the BLM district manager’s decision, the IBLA decision, and now the appellant court’s decision.

The local BLM manager ruled the allotment owners were in substantial noncompliance with the the terms and conditions of the permit and denied their renewal request.

Upon appeal an IBLA judge concluded the material facts supporting BLM were undisputed; that they showed that BLM was justified in declining to renew HRP’s grazing permit; and that they “established an extensive history of grazing trespass/noncompliance, which demonstrated a failure to substantially comply…” 

In summary, the feds compiled a list of actions that justified the substantial noncompliance criteria and that a declaration the ranchers were not in good standing was justified. In defending the agencies authority to determine good standing, the law dogs always cited Section 402 of FLPMA, which states grazing permits: 

…shall be for a term of ten years subject to such terms and conditions the Secretary concerned deems appropriate and consistent with the governing law, including, but not limited to, the authority of the Secretary concerned to cancel, suspend, or modify a grazing permit or lease, in whole or in part, pursuant to the terms and conditions thereof, or to cancel or suspend a grazing permit or lease for any violation of a grazing regulation or of any term or condition of such grazing permit or lease. 

So long as (1) the lands for which the permit or lease is issued remain available for domestic livestock grazing in accordance with land use plans..(2) the permittee or lessee is in compliance with the rules and regulations issued and the terms and conditions in the permit or lease specified by the Secretary concerned, and (3) the permittee or lessee accepts the terms and conditions to be included by the Secretary concerned in the new permit or lease, the holder of the expiring permit or lease shall be given first priority for receipt of the new permit or lease. 

Note the (2) above. 

When it comes to the “preference” issue, we turn to the recent decision of the appellant court which notes that both the Taylor Grazing Act and FLPMA provide that individuals who

control land or water within or near a grazing district may receive a “preference” or “priority” to stand first in line in applying for a grazing permit. 

The ranchers argued that a grazing preference survives the expiration of a corresponding permit and continues to exist until the BLM cancels it. Because the BLM never canceled their grazing preference through any formal process, they asked the court to conclude that they retained a preference even after their grazing permit expired. 

The court, however, concurred with the BLM and the IBLA concluding that after the ranching partnership’s grazing permit expired, and the BLM declined to issue a new permit due to unsatisfactory performance, the ranching partnership “did not hold any residual preference.”    

For the individual rancher, this means you should pay special attention to the terms and conditions of your permit. 

For the industry as a whole, we know there are groups who want to end livestock grazing in certain areas. Legislation to accomplish this is seldom successful. You better take note that a new procedure may be blossoming. Find the allotment holder is in substantial noncompliance, cancel his or her permit, and not issue a new permit as you designate the land to another public use. Livestock grazing will no longer occur. 

Until next time, be a nuisance to the devil and don’t forget to check that cinch. 

Frank DuBois was the NM Secretary of Agriculture from 1988 to 2003, is the author of a blog: The Westerner (www.thewesterner.blogspot.com) and is the founder of The DuBois Rodeo Scholarship and The DuBois Western Heritage Foundation