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Grazing Administration--Exclusive of Alaska
Note: EPA no longer updates this information, but it may be useful as a reference or resource.
[Federal Register: July 12, 2006 (Volume 71, Number 133)]
[Rules and Regulations]
[Page 39451-39500]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr12jy06-18]
[[pp. 39451-39500]]
Grazing Administration--Exclusive of Alaska
[[Continued from page 39450]]
[[Page 39451]]
not become an ``undertaking'' with the potential to affect historic
properties as defined in the regulations. The regulations established
by the Advisory Council for Historic Preservation make clear that once
an agency determines there is no undertaking, or that its undertaking
has no potential to affect historic properties, the agency has no
further Section 106 obligations.
Other comments stated that emphasis on considerations such as the
social, economic, and cultural effects of agency decisions that change
levels of grazing preference would have adverse impacts on natural
resources, leading to degradation of the public lands. Comments stated
that improving working relationships with grazing permittees and
lessees would tend to weaken the ability of BLM to manage rangelands in
a timely fashion by adding considerable time before action can be
taken. One comment stated that BLM should have working relationships
with the public, not just ranchers. Another accused BLM of appeasing
ranchers and increasing the level of environmental damage.
We have not materially changed current policy with regard to the
consideration of social, economic, and cultural impacts of decisions in
the grazing program. We currently consider the social, economic, and
cultural effects of actions that change grazing use levels, as well as
other aspects of grazing operations in the NEPA process. The main
difference is that, under these changes to the regulations at section
4110.3(c), BLM will more consistently document these considerations.
This change in the regulations will help improve consistency across the
Bureau in the analysis of social, economic, and cultural impacts. The
consistent documentation of these concerns does not come at the expense
of protecting natural resources and maintaining healthy rangelands.
Rather, it improves working relationships between BLM and ranchers by
ensuring that social, economic and cultural impacts are analyzed and
disclosed where appropriate. Since this provision requires no more
analysis than current policy does, we anticipate few delays in the
authorization and implementation of grazing management actions on
public lands attributable to this provision.
One comment urged BLM to include, in addition to the provision as
proposed, provisions to require BLM to work closely with local planning
departments, to include consultation, cooperation, and coordination
with the grazing permittee or lessee, and state and local government in
this section, and to give consideration to provision for local, state,
and regional governance.
Under 43 U.S.C. 1712(c)(9), 40 CFR 1500.4(n), 1501.2(d)(3),
1501.7(a)(1), 1506.2(b), and Departmental Manual and BLM Handbook 1790,
BLM is directed to coordinate to the degree feasible with state and
local governments. BLM sees no need to reaffirm existing guidance on
this aspect of planning and environmental analysis in this rule.
Section 4110.3-1 Increasing Active Use
In keeping with the changes in the meanings of ``preference'' and
``active use,'' in the proposed rule we amended the heading of this
section to refer to active use and removed the term ``permitted use''
throughout. Because the provision affects how we regulate available
forage, we asked the public to comment on whether BLM should use the
term ``available forage'' instead of ``active use.''
BLM also asked for specific comments on this section to help
determine whether there have been situations in which the ability of
permittees or lessees to obtain loans was adversely affected by having
some of their forage allocation suspended.
We proposed to reorganize this section to describe how we authorize
increased grazing use when additional forage is available either
temporarily, or on a sustained yield basis. BLM added two new
paragraphs to clarify who has priority when we grant additional grazing
use because livestock forage has become available on either a
nonrenewable basis or a sustained yield basis.
In the final rule we have added language in the introductory text
of this section that makes it clear that decisions increasing active
use are also based on monitoring or documented field observations, just
as decisions decreasing active use must be. Changes in preference,
whether increases or decreases, already must be supported by monitoring
or documented field observations under section 4110.3.
A number of comments raised issues relating to additional forage
temporarily available. Before discussing the comments, we will briefly
describe how BLM handles forage that is temporarily available.
In conformance with land use plan multiple-use objectives and
decisions, BLM may allocate additional forage that is temporarily
available for use by livestock, and authorize its use on a nonrenewable
basis. Because it is a temporary forage allocation, the action of
authorizing such use does not increase active preference. BLM commonly
refers to such temporary forage allocations as ``TNR,'' which stands
for ``temporary and nonrenewable'' livestock grazing use. Before
authorizing TNR livestock grazing use, either by issuing a nonrenewable
grazing permit, or by temporarily modifying the grazing permit or lease
of a preference operator, BLM ensures compliance with NEPA analysis
requirements and documents that this action conforms to applicable land
use planning decisions. BLM completes NEPA-required analysis either in
response to a specific circumstance following an application for
additional use, or by completing a regionally-based analysis, in
anticipation of applications, that specifies natural resource and
weather-based criteria or thresholds that must be met or crossed, as
well as other conditions that must be met before BLM will authorize TNR
livestock grazing use.
We have not changed the regulations in response to these comments,
which we discuss below.
BLM received numerous comments asking that a permittee's or
lessee's stewardship efforts be included as criteria for determining who
is to receive temporary, as well as permanent, increases in grazing use.
Additional forage that is temporarily available most often occurs
in years when favorable growing conditions result in above-average
forage production. Although stewardship efforts can contribute to
additional forage for livestock that is temporarily available, BLM
believes that in most cases, it would be difficult to ascertain the
role of stewardship versus the role of good growing conditions in
contributing to the increase. Therefore, requiring BLM to consider and
reward this role would be impractical.
One comment asserted that only existing permittees and lessees
should be eligible for grants of additional forage for livestock when
BLM finds that it is available under section 4110.3-1(b).
Section 4110.3-1 provides that if BLM determines that there is
additional forage available for livestock within an allotment, it will
first be apportioned to remove any suspensions of that allotment's
permittees or lessees, then to those permittees or lessees in
proportion to their contributions to stewardship efforts that led to
the increased forage production, then to those permittees and lessees
in proportion to the amount of their grazing preference, then to other
qualified applicants. The comment urges BLM to remove ``other qualified
applicants'' from the list of possible
[[Page 39452]]
recipients of the forage increase. BLM believes that it would be a rare
occasion when there would be an increase in forage available for
livestock that would be made available, following satisfaction of the
other requirements of this regulation, to ``other qualified
applicants.'' Nonetheless, BLM sees no need for undue restrictions on
who may receive this public benefit.
One comment advocated that BLM should determine if additional
forage is temporarily available only upon application by a qualified
applicant. If, the comment went on, following such application, BLM
finds additional forage to be temporarily available, we should be
obliged to approve its use by the applicant, following consultation,
cooperation, and coordination with the preference permittee or lessee.
BLM generally responds to, rather than solicits, applications for
TNR use. It is unnecessary to make it a regulatory provision that BLM
can determine additional forage to be available only if a qualified
applicant applies for it first. Most commonly, BLM receives
applications for TNR use from the permittee or lessee with preference
for use in the allotments where the forage is available. The
regulations provide also that a person other than the preference
permittee or lessee may apply for TNR use.
One comment urged us to provide in this section that BLM must
consult with wildlife agencies before temporarily, as well as
permanently, increasing grazing use, so that they can effectively
manage wildlife whose populations can be affected by grazing.
As provided by section 4130.6-2, BLM is required to consult,
cooperate, and coordinate with the preference permittee or lessee and
the state having lands or responsibility for managing resources in the
area prior to authorizing TNR use. Thus the state agencies responsible
for managing wildlife resources will be consulted prior to a proposed
decision for increases or decreases in active use as well as for TNR
use. In addition, BLM will consult with state wildlife agencies as part
of the process to develop the NEPA compliance documentation.
One comment asked BLM to clarify in this section that additional
forage will be, rather than may be, apportioned to qualified applicants
consistent with land use plans.
BLM retained the term ``may,'' rather than ``will,'' as it pertains
to apportioning additional forage available for livestock grazing, in
order to retain our complete discretion in this matter. The wording in
the final rule reflects that in the pre-1995 provision. It means that
BLM will not apportion additional forage temporarily available if there
is no demand for it. (As to additional forage available on a sustained
yield basis, on the other hand, the regulations state that BLM will
first use it to end suspensions that were in place due to lack of
forage. Any further apportionment of such forage, however, will occur
only after consultation with the affected state agencies, permittees,
lessees, and the interested public.)
One comment interpreted changes in this section to mean that BLM
could designate ephemeral or annual rangelands based on a finding that
forage was temporarily available and allow BLM to approve grazing
regardless of land use plan decisions and land conditions.
A BLM determination that additional forage for livestock is
available on a temporary basis does not serve to designate ephemeral or
annual rangelands. BLM makes these determinations in land use plans.
The next group of comments addressed increases generally. BLM made
one change to the final regulations in response to these comments.
One comment asked BLM to make it clear that section 4110.3-1(b)(2)
refers only to forage available for livestock, so that the regulation
is not interpreted to preclude allocations of additional forage
available on a sustained yield basis to other uses.
Section 4110.3-1 (b)(2) is within paragraph (b), which we have
amended in this final rule by adding the word ``livestock,'' so that it
states in part, ``When the authorized officer determines that
additional forage is available for livestock use on a sustained yield
basis, he will apportion it in the following manner * * *.'' BLM
believes that this makes it clear that the forage being referred to is
forage allocated to livestock through planning and decision processes,
in contrast to, for example, forage that is allocated to wild horses
and burros, or forage that is allocated to wildlife, using the same
planning and decision processes.
Another comment asked BLM to include assurances or a requirement
that increased forage allocation to wildlife will result when wildlife
organizations contribute to a project that increases available forage.
The suggestion to provide assurances in this subpart that increased
forage resulting from projects funded by wildlife organizations is
outside of the scope of this rule. However, before agreeing to fund
projects that will increase forage available on public lands, wildlife
organizations are free to negotiate the terms under which to make such
contributions, and to memorialize these arrangements through
cooperative agreements with BLM and other project participants.
Another comment urged BLM to establish criteria that must be met
before preference can be increased.
Regulatory criteria for making changes in grazing preference,
including increases in preference, appear in section 4110.3(a). They
include: to manage, maintain, or improve rangeland productivity; to
assist in restoring ecosystems to properly functioning condition; to
conform to land use plans or activity plans; or to comply with the
provisions of subpart 4180.
One comment urged BLM to provide permittees and lessees the right
to ``petition'' for increased grazing use up to the limit of their
preference, subject to its availability.
Under previous and current regulations at section 4130.1-1,
permittees and lessees have the right to apply for grazing use at
whatever level they desire, regardless of preference. BLM's response to
the application, however, will be guided by available resource
information pertinent to the decision, be consistent with land use plan
objectives and decisions, and comply with these grazing regulations.
One comment stated that BLM should develop and demonstrate a
process that would allow grazing to increase if monitoring shows that
an increase is warranted.
The section discussed in this portion of the preamble already
contains, and this rule does not remove, procedures to allow grazing to
be increased.
One comment suggested that the interested public should be excluded
from consultation, cooperation, and coordination under section 4110.3-
1(b)(2).
We have not adopted this suggestion in the final rule. The
allocation of additional livestock forage available on a sustained
yield basis, after satisfaction of any suspension of preference of the
permittee or lessee for the allotment where the additional forage is
located, is considered a planning decision by BLM. Therefore, it is
appropriate to consult, cooperate, and coordinate with the interested
public, as well as affected permittees, lessees, and the state, before
issuing a proposed decision allocating that additional livestock forage.
Section 4110.3-2 Decreasing Active Use
Again, in this section we replaced the term ``permitted use'' with
the term ``active use'' throughout. We also amended paragraph (a) to
provide that BLM will document its observations
[[Page 39453]]
that support the need for temporary suspension of active use, and
amended paragraph (b) to provide that BLM will place any reductions in
active use made under this paragraph into suspension rather than
require a permanent reduction.
Several comments on this section stated that BLM should have the
option to require that preference reductions made under section 4110.3-
2(b) be placed in ``nonuse'' rather than be suspended by BLM.
BLM has not adopted this suggestion in the final rule. Adopting
this suggestion would confound, rather than clarify, the management
implications of the action of ``suspending'' active preference versus
approving the ``nonuse'' of active preference.
Before 1995, the grazing regulations provided that when active use
was reduced, the amount reduced could be either ``held [by BLM]
in
suspension or in nonuse for conservation/protection purposes.'' This
pre-1995 terminology created 3 categories of preference: ``active,''
``suspended'' and ``nonuse for conservation/protection purposes.''
Having three categories of preference made it less clear under what
management circumstances it was appropriate for BLM to suspend active
use rather than ``hold'' nonuse (of active use) for conservation/
protection purposes. Further conceptual blurring was created by BLM
policy, as stated in our handbook, that a permittee/lessee could
annually apply and receive approval for nonuse of all or a part of his
active use for reasons associated with personal or business needs, or
for ``conservation and protection of the range,'' but this ``short-
term'' nonuse did not affect preference status. Based on the pre-1995
regulations, there currently are some grazing permits and leases that
list nonuse that is being ``held'' by BLM and which is included as a
part of the total grazing preference. However, this nonuse, i.e., that
portion of active use that was ``held in nonuse conservation/
protection'' under the pre-1995 regulations, is the practical
equivalent of suspended preference as this term is used in this rule.
This final rule intends to establish and clarify a distinction
between ``suspended'' preference and ``nonuse'' of preference, thus:
? Suspended preference arises from an action initiated by
BLM. BLM suspends preference when necessary to manage resources by
decreasing active use under section 4110.3-1 or as a penalty action for
grazing regulations violations under section 4170.1-1. In contrast,
nonuse arises when BLM approves an application submitted by a grazing
permittee or lessee not to use some or all of the active use authorized
by a permit or lease under section 4130.4.
? Suspended preference is shown on the grazing permit or
lease, and along with active use is part of the total grazing
preference of the permittee or lessee. BLM does not issue a grazing
permit or lease to authorize nonuse. The ``conservation use
permitting'' provisions that allowed for this practice were disallowed
by the 10th Circuit Court of Appeals in 1998 and are removed from the
grazing regulations by this rule. As explained previously, because of
the regulations that were in place before 1995, there is one exception
to the statement that we do not issue grazing permits or leases that
authorize nonuse. On some permits and leases, BLM still shows nonuse as
a part of the total preference because pre-1995 regulations allowed
reductions of active preference to be ``held in nonuse for
conservation/protection purposes.'' However, this nonuse is the
practical equivalent of suspended preference as clarified by this rule.
? BLM may suspend preference on a short-term basis, as may
be needed, for example, to allow recovery of vegetation after a fire.
BLM also may suspend preference for a longer term or indefinitely, as
may be needed, for example, when BLM determines through monitoring that
there is not enough livestock forage produced on a sustained yield
basis to support the active use authorized by a permit or lease, and
that forage production is not expected to be able to support that level
of use for the foreseeable future. To receive BLM's approval for
nonuse, permittees or lessees must apply for nonuse of some or all of
the active use authorized by their permit or lease, prior to the start
date of the grazing use period specified on their permit or lease. The
BLM authorized officer authorizes the nonuse by approving the
application, as indicated by his signature on the application. BLM will
not approve of nonuse for longer than one year at a time, and will
approve it only if we agree that nonuse is warranted for the reasons
provided on the application.
? BLM must issue a grazing decision or be a party to a
documented agreement to suspend preference. BLM records suspended
preference on permits and leases and in operator case records for
recordkeeping purposes, but suspended preference is not available for
active use under the permit or lease. BLM need not issue a decision or
have a documented agreement to approve nonuse. If BLM approves an
application for nonuse for reasons of rangeland conservation,
protection, or enhancement, or for personal or business needs, the
permittee or lessee is precluded from using the amount of active use
that has been approved for nonuse. BLM may subsequently approve a later
application to make use of what had been approved as nonuse should
circumstances change (e.g., moisture is received later in the season
that increases forage production, thereby alleviating the need for
nonuse for conservation reasons, or an operator purchases livestock
mid-season and because of this can use forage that he previously could
not because he did not own enough livestock).
Suspended preference is a recordkeeping convention adopted by BLM.
If, after the suspension, BLM determines that there is an increase in
the amount forage available for livestock on a sustained yield basis,
this record indicates who has priority for its use and in what amount.
As explained above, due to the regulations in place before 1995, some
permits and leases show ``nonuse'' as a part of the grazing preference.
In actuality, this nonuse is equivalent to suspended use as the concept
has been clarified by this rule.
One comment requested that BLM not change the regulation and
continue to provide that the active use that is reduced under this
paragraph be terminated rather than suspended.
We did not adopt this comment in the final rule. It is important to
keep record of any reductions in active preference as ``suspended''
preference. It helps BLM to track, by allotment, permittee or lessee,
and base property, the original livestock grazing use forage
allocation, the attachment of that allocation to base property, and
subsequent adjustments arising both from management actions to increase
or reduce use, and from administrative actions such as preference
transfers. Suspended preference is attached to base property, and is
transferred along with active preference. This record facilitates BLM's
ability to apply section 4110.3-1 to reinstate active use to permittees
and lessees, upon a BLM determination that forage for livestock, in an
amount that exceeds active preference, has become available on a
sustained yield basis.
Another comment asked that BLM cross-reference this paragraph to
section 4110.3-1 in order to make it clear that activation of preference
suspended under section 4110.3-2(b) would be governed by that section.
BLM did not adopt this suggestion. BLM does not believe that cross-
referencing section 4110.3-1 in section 4110.3-2(b) is needed to ensure
that it is understood that activation of
[[Page 39454]]
preference suspended under section 4110.3-2(b) is, in fact, governed by
section 4110.3-1.
One comment asked BLM to change the criteria that justifies a
reduction of active use as described in Sec. 4110.3-2(b) from ``when
monitoring or documented field observations show that grazing use or
patterns of use are inconsistent with subpart 4180, or that grazing use
is otherwise causing an unacceptable level or pattern of use, or that
use exceeds livestock carrying capacity,'' to ``when monitoring shows
that active use is inconsistent with objectives of the applicable land
use plan, activity plan, or decision, or shows that active use exceeds
the forage available on a sustained yield basis.'' This comment said
that this change would clarify that land use plans governed actions
that affected the amount of active use authorized.
We have not adopted the comment in the final rule. BLM believes
that these criteria are sufficiently clear to serve the purpose
intended by the regulation. These criteria allow for the effects of
grazing use to be measured against objectives tailored specifically to
a local area, such as a single stretch of a riparian area, or an
individual pasture, that may not be addressed in sufficient management
detail in a land use plan, activity plan, or decision of the authorized
officer. These local objectives would be consistent with the more
general management objectives typically found in land use plans and
activity plans. Moreover, section 4110.3(a) provides that BLM will
change grazing preference as needed to conform to land use plans or
activity plans.
Another comment stated that because grazing use or patterns of use
are by definition a part of monitoring, including them in Sec. 4110.3-
2(b) is redundant.
BLM acknowledges that use of pattern mapping and measurement of
utilization are a part of monitoring. The wording in the regulation,
however, is not redundant. The regulation requires that when this
information shows that grazing use levels or patterns of use are
unacceptable, BLM will reduce active use, otherwise modify management
practices, or both.
One comment stated that BLM should provide for payment to the
permittee or lessee for any cuts in permit numbers at the prevailing
appraised rate in order to curtail cutting permits under the pretense
of the ESA.
It is not clear from the comment why it concluded that BLM paying a
permittee or lessee for reductions in grazing use would curtail
reductions made as a result of compliance with the requirements of the
ESA. In any event, grazing permits and leases convey no right, title,
or interest held by the United States in any lands or resources.
Therefore, payment for reduced livestock use would be neither
appropriate nor legally supportable.
Finally, one comment stated that BLM should not reduce preference,
and suggested that individual monitoring would provide the information
needed to make grazing changes that would address management issues
without having to reduce preference.
We have not adopted the suggestion that BLM not be allowed to
reduce preference. This would unduly restrict the statutory authority
of the Secretary to manage grazing use on public lands. Depending on
circumstances, there are management solutions to grazing issues that do
not involve reducing preference. However, this is not always the case.
One comment urged that, in case of fires in allotments, the
allotment should be rested for a minimum of 3 years, and 5 years if any
BLM permittee has livestock on a burn area prior to approval, plus a
substantial reduction in their grazing permit.
The issue of how much rest from livestock grazing is needed after a
fire is a matter for internal guidance, and is outside the scope of
this rule. Furthermore, prescribing rest periods for lands through the
regulatory process does not allow site-specific analysis and
consideration of on-the-ground resource conditions and potential impacts.
Section 4110.3-3 Implementing Changes in Active Use
In the proposed rule, we changed the title of this section to
reflect that it pertains to both increases and decreases in grazing
use. We also modified how BLM implements changes in active use. The
amended section provided that BLM will phase in changes in active use
of more than 10 per cent over a 5-year period unless the affected
grazer agrees to a shorter period or the changes must be made before
the end of 5 years to comply with relevant law. This 5-year phase in
period is similar to that in the pre-1995 regulations.
BLM also amended paragraphs (a) and (b) by removing the phrase
``the interested public.'' Changes in active use must be preceded by
reports, including NEPA documents, that analyze data BLM uses to
support the change. Under section 4130.3-1, BLM provides the interested
public the opportunity to comment on these reports. Under section
4160.1, BLM provides a copy of the proposed and final grazing decisions
to implement the change to the interested public. BLM will provide the
interested public full opportunity for participation and comment on the
action prior to actual implementation. For this reason additional
consultation with the interested public regarding the actual scheduling
of the change is redundant.
Under the final rule, changes in active use levels and emergency
closures made due to drought, fire, flood, insect infestation, or when
grazing poses an imminent threat to the resource, no longer trigger
required consultation, cooperation, and coordination with the
interested public. This change is intended to improve the
administrative efficiency of grazing management operations.
Many comments opposed any reduction in the role of the interested
public, but relatively few comments addressed these particular
functions. Some comments supporting the change noted active use changes
as an area where efficiency could be improved by removing the
interested public consultation requirement.
Note again that the role of the public under NEPA is unaffected by
this rule change. Additionally, members of the interested public will
have an opportunity to review and provide input on any reports used as
a basis for decisions on changes in grazing use. The interested public
will still receive the proposed and final decisions for changes in
active use, and they could protest the proposed decision if so desired.
In BLM's view, the NEPA process, informal consultations, the
opportunity to review and provide input on reports used as a basis for
decisions, and the ability to protest before a decision is final, all
are adequate mechanisms for identifying legitimate public concerns over
active use changes. No protest could be filed against an emergency
closure, which is issued as a final decision, but these decisions
require management flexibility to allow a quick response to changing
circumstances on the ground. These changes make the grazing program
similar to other BLM programs in the level of coordination required for
actions under various BLM permits and leases. Therefore, we have made
no changes in the final rule.
A number of comments supported the proposed provision in section
4110.3-3 for phasing in changes in active use greater than 10 percent
over 5 years. These comments stated that the provision would ensure
more orderly administration of grazing on BLM administered lands and
protect the resource better than the current regulations do. Others
agreed that it would improve the ability of local BLM
[[Page 39455]]
field managers to use the variety of rangeland management tools
available, including range improvements and changes in grazing
strategies, to accomplish resource objectives because of the additional
time allowed. Most of the supportive comments agreed that permittees
should be given the opportunity to make adjustments over a period of
time in order to incorporate the reductions into their entire
operation/business without unnecessary economic disruption.
Other comments opposed the provision allowing up to 5 years to
implement changes in active use greater than 10 percent. Some stated
that the provision is inconsistent with the regulatory objective: ``to
accelerate restoration and improvement of public rangelands to properly
functioning conditions.'' Others reasons given for opposing the
provision included concerns that it would allow unhealthy range
conditions to persist, delay range recovery, or lead to additional
range degradation, especially of riparian and wetland habitats. They
said the provision would have negative impacts on natural resources and
other uses of the land. Some of these comments stated that the
provision showed that BLM is more concerned with private financial
well-being of permittees than with managing publicly owned natural
resources in the public interest. One comment said that if the
condition of the natural resources on a grazing allotment is so bad
that a reduction in permitted livestock numbers in excess of 10 percent
is necessary, then the situation is probably so bad that delaying
implementation of the reductions would be tantamount to criminal
neglect. Others said that such delays would lead to continued petitions
for listing species under the ESA. One comment opposed this provision
because it would contradict the goal of increasing administrative
efficiency, negate the requirement for prompt action to address harmful
grazing practices, and limit the conditions under which BLM may revoke
a grazing permit. Others said that it would tend to weaken the ability
of the local BLM field offices to manage rangelands in a timely fashion
by adding considerable time before we can take action. Some comments
conceded that under some circumstances it may be possible to phase in
the needed changes in grazing over a 5-year period without compromising
long-term range sustainability, but stated that BLM range professionals
needed the ability to respond immediately and to the extent necessary
to avoid impacts on range condition or vegetation communities that may
take decades to reverse. Other comments expressed concern that the
proposed 5-year phase-in period may be inadequate to protect sensitive
species and their habitat. One comment requested clarification as to
whether the provision allow BLM to adjust livestock numbers over a
shorter period of time to protect wildlife and plants that are
candidates for listing as threatened or endangered or determined by BLM
to be sensitive, and whether the proposed rule was in compliance with
the requirements of the Endangered Species Act. (The sensitive species
designation is normally used for species that occur on BLM-administered
lands, and for which BLM can significantly affect their conservation
status through management. See BLM Manual 6840.06E (Release 6-121, 01/
19/01)).
We believe the final rule gives BLM sufficient discretion to handle
a wide range of circumstances. The rule does not change BLM's ability
to cancel a permit in whole or in part if necessary. The rule is
flexible enough to provide for immediate, full implementation of a
decision to adjust grazing use if continued grazing use poses an
imminent likelihood of significant soil, vegetation, or other resource
damage. The rule also allows BLM and the permittee to agree to a
shorter time frame for implementation. The rule allows BLM to initiate
necessary adjustments while giving the permittee an opportunity to make
changes in their overall business operation. The provision in the rule
allows us to begin reducing active use when necessary, while
considering the human aspect of the impacts of the reduction. Our
cooperative approach should lead to a decreased likelihood of appeal on
the part of the permittee or lessee. In turn, we expect this decreased
likelihood of appeal to result in implementing necessary grazing
reductions more quickly, thus allowing BLM to remedy resource problems
more efficiently. Recent experience (1998-2002) indicates that current
livestock grazing or level of use was a significant factor in not
meeting land health standards on only 16 percent of the allotments
evaluated, requiring adjustments in current livestock management. From
1998 to 2005, 15 percent of the evaluated allotments were determined to
be in this category. Most of these adjustments have been made in the
season of use, or movement and control of livestock, rather than in
levels of active use. An unknown, but likely small, portion of these
adjustments were changes of more than 10 percent in active use. Where
adjustments are needed to improve riparian or wetland condition, the
adjustments are rarely in active use, but are frequently adjustments in
season of use, or changes in length of time livestock are allowed
access to the riparian area (e.g., grazing might be changed from 6
weeks in the summer to 3 weeks in the spring). The rule contains an
exception, in section 4110.3-3(a)(ii), that allows changes in active
use in excess of 10 percent to be implemented in less than 5 years to
comply with applicable law, such as the Endangered Species Act. BLM
also has discretion under section 4110.3-3(b)(l)(i) and (ii) to
implement changes in active use immediately to handle a wide range of
circumstances. These circumstances may include fire, drought, the need
to protect soil, vegetation, or other resources, or if continued
grazing use poses an imminent likelihood of significant resource damage.
BLM has the authority to implement grazing decisions immediately if
the authorized officer determines that soil, vegetation, or other
resources on the public lands require immediate protection because of
conditions such as drought, fire, flood, or insect infestation, or if
continued livestock grazing poses an imminent likelihood of significant
resource damage. BLM's responsibilities under the ESA and BLM special
status species policy are not affected by the final rule.
Several comments offered alternatives to the 10 percent threshold
and the 5 year implementation period. One comment proposed that the
threshold for changes that prompt a delay of 5 years in implementation
should be increased from 10 percent to at least 25 percent, reasoning
that small adjustments would result in ascertainable changes in
resource condition in a season or two. Another comment suggested that
the authorized officer implement changes in active use of 5 percent or
less in 1 year, 5 to 15 percent equally over 3 years, and in excess of
15 percent equally over 5 years. The comment stated that this
formulation would ensure equal, incremental decreases or increases in
active use over time, and accelerate decreases or increases in active
use when a relatively small change is made.
The 10 percent threshold and 5 year implementation period proved to
be a practical combination prior to being changed in the 1995 rules.
The lower threshold allows affected permittees to avoid rapid
adjustments in such significant numbers. However, the number of
permittees and allotments affected by this provision is not likely
[[Page 39456]]
to be large, given that over the last 5 years, most adjustments in
grazing management resulting from land health assessments have been
made in the season of use, or movement and control of livestock, rather
than in levels of active use. Again, recent experience (1998-2002)
indicates that current livestock grazing or level of use was a
significant factor in not meeting land health standards on only 16
percent of the allotments evaluated, requiring adjustments in current
livestock management. From 1998 to 2005, 15 percent of the evaluated
allotments were determined to be in this category. See Section 4.3.1 of
the EIS and page 33 of the EIS Addendum.
Comments expressed concern that annual conditions or fluctuations
in weather could require more than 10 percent reductions on an annual
basis, particularly in the arid southwest.
In practice, during prolonged drought conditions, ranchers
voluntarily reduce their livestock numbers because of the economics of
their industry. However, this section of the rules applies to
adjustments in the terms of the grazing permit, rather than in
temporary adjustments made on an annual basis. When temporary
adjustments need to be made because of annual conditions, BLM and the
permittee or lessee can respond by:
(1) Resorting to temporary changes in grazing use within the terms
and conditions of the permit or lease under section 4130.4(a);
(2) Electing temporary nonuse under section 4130.4(d);
(3) Decreasing active use through suspensions under section 4110.3-
2; or
(4) In more extreme cases of drought, fire, flood, or insect
infestation, closing or partially closing allotments under section
4110.3-3(b).
One comment stated that implementing stocking rate changes of more
than 10 percent over a 5-year period would only be significant for
large operators. For most small permit holders such changes would be a
nuisance and administrative burden for permit managers to implement
(citing an example of a 50 AUM permit). The comment stated that small
changes to existing permits should be implemented in 2 years or less,
since this would be more efficient for both permittee and public land
manager. For larger permits, the comment suggested that the phase-in of
changes should be dependent on situational conditions and their
relationship to the need for improving rangeland health and permittee
interests (up to 5 years).
The final rule is flexible enough to allow BLM and the permittee to
agree to a shorter time frame for implementation. The regulations allow
BLM to initiate necessary adjustments while giving permittees
opportunity to make changes in their overall business operations.
One comment pointed out that BLM has not reviewed many grazing
allotments for over a decade. The comment concluded that, considering
improvements in our knowledge of range science and of best management
practices for rangelands over the past 20 years, it is likely that
changes in active use in excess of 10 percent will be required on
numerous allotments.
BLM is evaluating current resource conditions in relation to land
health standards. By the end of 2003, we had evaluated 40 percent of
allotments, and plan to evaluate the remainder by the end of 2008. As
we stated earlier, based on results and changes made because of these
evaluations, most adjustments in grazing management are being made in
the season of use, or movement and control of livestock, rather than in
active use.
One comment cited situations when it would be desirable to increase
grazing in order to enhance habitat for ``federal trust species.'' The
comment also asked whether BLM needs permission from an allotment's
existing permittee before it could allow another grazing operator to
graze additional livestock on an allotment when desired to enhance
habitat for Federal trust species, and asked also whether such an
operator would need to meet mandatory qualifications.
It is advantageous at times to increase livestock numbers for weed
or vegetation management for purposes of enhancing habitat and reducing
brush cover for specific wildlife species (e.g., burrowing owl or
mountain plover). In these cases BLM has several options. The BLM would
first contact the existing permittee to discuss needs and options
feasible to the permittee. If the permittee is unable to increase
stocking numbers, BLM may advertise an available opportunity to
applicants qualified under section 4110.1, offer a free-use permit, or
contract to have vegetation reduced by goats, mechanical thinning, or
manual pulling and weeding.
One comment stated that slowing the response to unhealthy
rangelands seems to be inconsistent with the current Administration
policy of accelerating management responses to fire and the conditions
that lead to or exacerbate fires.
This comment is attempting to compare two situations that are not
comparable. Fires in the wrong locations threaten life and property,
and it is vital to accelerate management efforts to deal with these
threats. Rangeland degradation does not normally carry equivalent
threats. The regulations are flexible enough to allow accelerated
management to address range degradation that cannot wait for the phase-
in period provided in section 4110.3-3(a)(1). As stated earlier, the
rule at section 4110.3-3(b)(1)(i) allows BLM to remove or modify
livestock grazing when immediate protection is needed because of
conditions such as drought, fire, flood, or insect infestation. In
1994, BLM amended its grazing regulations to address the health of
public rangelands. These changes, including the standards and
guidelines for grazing administration, remain in the rule and continue
to contribute to improving the health of public rangelands. The changes
adopted in this final rule seek to refine, without altering the
fundamental structure of, the grazing regulations. In other words, we
are adjusting rather than conducting a major overhaul of the grazing
regulations.
One comment asked BLM to require that increases in active use be
implemented by decision, so that the action could be protested and
appealed, and to make it consistent with the requirement at section
4110.3-3(a)(2), which, the comment states, requires that decreases in
active use be implemented by decision. Another comment stated that BLM
should remove its authority at section 4110.3-3 to implement changes in
active use by decision, so that range improvements could be installed
in lieu of reducing active use.
This provision in section 4110.3-3 was not proposed for change in
the proposed rule. BLM believes that it is important to retain the
discretion to change preference by agreement or by decision, depending
on management circumstances that can vary greatly from instance to
instance, and not require the use of one method or the other. We would
use agreements in relatively simple management circumstances, such as
with the holder of a small allotment with relatively few management
issues. For example, an operator who agrees with the need for a change
in his forage allocation, and has no interested public, would be a
likely candidate for implementing a change in preference by agreement.
In contrast, decisions are more likely to be used in complex management
circumstances such as might be encountered, for example, when
addressing the needs of a large allotment that has several resource
issues, is permitted to several operators, and has several interested
publics, some of whom might dispute the need for, or
[[Page 39457]]
the appropriate level of, the preference change. Section 4110.3-3(a)(2)
does not require that decreases in active use be implemented by
decision. This section requires that when a reduction in permitted use
is implemented by decision, as opposed to by agreement, the decision
must first be issued as a proposed decision, except when immediate land
protection is needed because of circumstances such as drought, fire,
flood, or insect infestation, or when continued grazing use poses an
imminent likelihood of resource damage. There are times when the
installation of range improvements is an adequate substitute for
indefinite suspension of active use. For example, a new water
development may improve grazing distribution enough so that forage not
previously available becomes available for livestock use. However,
range improvements are not always the appropriate management response.
It is in the interest of sound management to provide BLM with the
flexibility to modify active use, or authorize range improvements,
depending on the circumstances.
One comment suggested rewriting sections 4110.3-2 and 4110.3-3 so
that they are clearer and don't cross-reference each other so much.
Each of the two sections specified in the comment contains one
cross-reference to the other section. We do not consider this an
unreasonable number of cross-references. We have reviewed the two
sections and do not see how they could be written more clearly and
still provide the information necessary.
One comment suggested making the 5-year phase in of changes in
active use greater than 10 percent discretionary with BLM, stating that
it would allow BLM to react in a timely manner if resource conditions
were in more immediate need of improvement, for whatever reason, and
result in greater benefits to wildlife.
The regulations, at section 4110.3-3, already allow BLM to act more
quickly to avoid significant resource damage by closing all or portions
of an allotment in the circumstances described in the comment.
One comment urged BLM to make adjustments when data indicates
livestock numbers are out of balance with the capacity of the land.
Estimates of stocking rates in plans do not necessarily reflect BLM's
willingness to reduce stocking levels. Another comment stated that
Federal rangeland health standards demand that the rule should focus
decisionmaking on management objectives stated in land use plans,
activity plans, and grazing decisions.
Stocking rates are best determined in the land use planning
process. However, as we stated earlier, the regulations contain
mechanisms for making changes in grazing use to avoid significant
resource damage. As provided in subpart 4180, we will use monitoring
and standards assessment to determine whether changes in management
practices are necessary.
Several comments suggested modifications of this section 4110.3-2
of the proposed rule. One was that BLM should consult with any base
property lienholder before closing allotments to grazing or modifying
grazing authorizations due to emergencies or when continued grazing use
will result in resource damage. Another was to include consultation
with county commissioners where downward adjustments in grazing use
levels are being planned, and that the reductions should be justified
by reasons that are documented in an allotment evaluation that is
conducted before the adjustments occur. A third suggested change was to
amend Sec. 4110.3-3(b)(1) and (b)(2) by replacing the term
``authorized grazing use'' with ``active use'' because there is no
definition of ``authorized grazing use'' in the regulations.
BLM is not changing the regulations in response to these comments.
BLM implements changes in active use by grazing decision or by
documented agreement. When changes are implemented by decision, our
regulations provide for sending such decisions to any lienholder of
record. If such lienholders requested ``interested public'' status,
they would also be able to provide input and comment on reports BLM
uses as a basis for making decisions to increase or decrease grazing
use. Given these opportunities for lienholder input to BLM's
decisionmaking process, there is no need for BLM to require itself to
consult specifically with lienholders before implementing changes in
active use. Further, in the pursuit of sound resource management, it
would be inappropriate to allow consideration of whether base property
is subject to a lien to affect or change a BLM decision to close
allotments to grazing or to modify grazing permits or leases due to
emergencies or when continued grazing use will result in resource damage.
The state having lands or responsibility for managing resources in
the affected area may choose to include county commissioners' input as
part of the state's consultation with BLM. BLM may also consult
directly with county commissioners at its option. BLM believes that
these two avenues of consultation provide adequate opportunity for
county commissioners to make their views known to BLM regarding
management issues. BLM makes either downward adjustments in grazing use
levels temporarily in response to emergencies or indefinitely after it
has determined that livestock forage is insufficient on a sustained
yield basis to support grazing at levels that had been previously
authorized. In either case, the decision implementing the downward
adjustment provides the rationale for the action and is subject to
review upon appeal. In most cases of indefinite downward adjustments in
grazing use levels, such rationale relies upon analysis found in a
documented allotment evaluation.
Paragraphs 4110.3-3(b)(1) and (b)(2) allow BLM to modify authorized
grazing use in response to emergencies, including complete closure of
an area to grazing when necessary to provide immediate protection
because of conditions such as drought, fire, flood and insect
infestation. ``Active use'' refers to a number of AUMs of forage. The
term ``authorized grazing use'' is more expansive and refers to all the
terms and conditions of use authorized by a term permit or lease. These
terms and conditions include, at a minimum, the number of livestock
authorized, where they may graze, and the season of the year and period
that they may graze. Although BLM may modify ``active use'' in response
to emergency resource conditions, we may also modify the other
parameters of use (such as location, period, and season) in response to
these conditions.
One comment suggested removing the provision authorizing BLM to
close allotments to grazing or modify authorized grazing use when the
authorized officer determines that resources on public land require
immediate protection or continued grazing use poses an imminent
likelihood of significant resource damage (section 4110.3-3(b)(1)). The
comment stated that the provision is too vague and could be used as a
catch-all to eliminate grazing at any time.
We have not adopted this suggestion in the final rule. The phrase
``or where continued use poses an imminent likelihood of significant
resource damage'' is in fact a prerequisite that must occur or be found
to exist before BLM can take action. The phrase covers situations not
otherwise specified in the regulation (i.e. ``because of conditions
such as drought, fire, flood, or insect infestation''). It would be
impractical for BLM to list in the regulations all possible situations
where an immediate closure or modification of grazing may be needed.
All BLM decisions that close
[[Page 39458]]
or modify grazing use are supported by rationale stated in the
decision, and decisions may be appealed under subpart 4160 and part 4.
One comment stated that, because of the problems associated with
recurrent long term drought, the regulations should require that base
property provide forage or other means of sustaining livestock should
the necessity arise to remove livestock from the public lands.
Furthermore, the comment went on, the base property should be real fee
property of the permittee or lessee and not leased property from a
state or other private property owner.
In areas where land serves as base property, BLM specifies the
length of time that the property must be capable of supporting
authorized livestock during the year (see section 4110.2-1(b)), thus
including the concept that the base could be used to sustain the
livestock should the necessity arise to remove them from public lands.
This ``base property requirement'' differs depending on the BLM
jurisdiction, but generally ranges from 2 to 5 months. In the desert
southwest, where water or water rights can serve as base property, BLM
can close allotments or portions of allotments to grazing use
immediately to protect resources because of conditions such as drought.
BLM sees no need to require that base property must not be leased property.
One comment identified an incorrect reference to 43 CFR 4.21 in
4110.3-3(b)(2). A stay relative to grazing is granted in accordance
with 43 CFR 4.472.
The final rule contains the correction.
Section 4110.4-2 Decrease in Land Acreage
In the proposed rule, we removed the term ``permitted use'' from
this section and replaced it with the term ``grazing preference'' for
the reasons explained previously. No public comments addressed this
specific change, and we have made no further changes in the final rule
as to this aspect of the proposed rule.
Several comments raised issues that are tied to this provision. One
comment suggested that BLM should be able to designate lands as not
available for grazing when this is needed to protect critical or
sensitive areas. Another comment stated that BLM should develop
regulations providing: (a) For the retirement or non-use of grazing
permits by conservation organizations; (b) that a voluntary permit
relinquishment automatically triggers the immediate permanent closure
an allotment to livestock grazing when that closure would benefit
conservation purposes; and (c) that at the request of the permittee,
BLM will promptly initiate a planning process to determine whether the
applicable land-use plan should be amended to provide that all or a
portion of an allotment will be made unavailable for grazing authorized
by FLPMA and PRIA. The comment stated that ``voluntary retirement'' of
grazing permits is sometimes the fastest, simplest, most effective, and
most amicable method of resolving disputes over livestock grazing in
environmentally-sensitive areas.
FLPMA directs BLM to develop and maintain land use plans to provide
for multiple use of the public lands, including livestock grazing use.
Land use plans, which are developed at the local office level with the
involvement of the general public, identify lands available and not
available for livestock use and management. In some land use plans, BLM
can and does designate lands as not available for grazing, and assigns
them to other uses. This results in reductions in land acreage
available for grazing, and BLM acts under section 4110.4-2 to implement
the reductions by canceling grazing preference.
BLM amends or revises land use plans under the planning regulations
(43 CFR part 1600) and the BLM land use planning handbook. An agreement
on voluntary relinquishment of a grazing permit (and preference) for
purposes of furthering a proposal to amend a land use plan to provide
for the retirement of an area from livestock grazing is not a permanent
contractual relationship between the entity relinquishing the permit
and BLM. Even if BLM amends the land use plan and effectively retires
the area from grazing for the immediate or foreseeable future, this
action can be amended or reversed under subsequent BLM planning and
decision processes.
One comment stated that, in addition to the permittee or lessee,
BLM also should give 2-year notification to any base property lien
holder before canceling a permit or lease when the lands under the
permit or lease will be devoted to a public purpose that precludes
livestock grazing as stated in 4110.4-2(b) because this will ``level
the playing field.''
This suggestion is consistent with existing BLM policy to provide
as a courtesy, upon request, notification to known base property lien
holders of actions that may affect the value of that property. BLM does
not believe, however, that it should require itself by regulation to
provide lienholder notice in this circumstance. Lenders normally
include provisions in their contracts with the borrower requiring the
borrower to notify them of actions that will affect the value of their
collateral.
Subpart 4120--Grazing Management
Section 4120.2 Allotment Management Plans and Resource Activity Plans
We amended paragraph (c) of this section in the proposed rule to
state BLM's internal procedural requirement more straightforwardly. The
current rule provides that the decision document following the
environmental analysis supporting proposed plans affecting the
administration of grazing is considered a proposed decision for
purposes of subpart 4160. This implies, but does not specify, that we
must issue such decision documents following the procedures of section
4160.1 on proposed decisions. The final rule merely makes it clear that
we issue these decisions in accordance with the procedures in section
4160.1.
No public comments addressed the changes in this section, and we
have made no changes in the final rule.
Section 4120.3-1 Conditions for Range Improvements
In the proposed rule we revised paragraph (f) for clarity and to
correct a citation to NEPA. No public comments addressed this section,
and we have made no changes in the final rule.
Section 4120.3-2 Cooperative Range Improvement Agreements
In the proposed rule we amended paragraph (b) to provide that,
subject to valid existing rights, cooperators and the United States
would prospectively share title to permanent structural range
improvements constructed under cooperative range improvement agreements
on public lands. Such structural improvements include wells, pipelines,
and fences constructed on BLM-managed public lands. BLM and cooperators
will share title to range improvements of public lands in proportion to
the value of their contributed labor, material, or equipment to make
on-the-ground structural improvements, subject to valid existing
rights. This returns the provision on how title for improvements
constructed under Cooperative Range Improvement Agreements is shared to
the regulation in place before 1995. The current regulations provide
that the United States has title to new permanent structural range
improvements.
Numerous comments opposed the change in section 4120.3-2 providing
for shared title to permanent range improvements by BLM and the
cooperators. One frequently expressed
[[Page 39459]]
concern was that a shared title creates potential ``takings'' issues if
the need to change from grazing to some other land use in an allotment
arises in the future. Comments asserted that a permittee or lessee with
shared title to a permanent structure on public land would demand
compensation for the lost value of his or her property if BLM proposed
changes in the land use that would reduce or discontinue grazing in an
allotment. Comments also stated that BLM would lack the funds needed to
compensate the permittee, and would be unable to take the management
actions needed to sustain rangeland health. Some comments stated that
the provision for the United States to hold title to range improvement
structures on public land was consistent with the TGA. One comment
stated that sharing title to range improvements may make it more
difficult to impose restrictions or modify grazing management because
of these issues regarding regulatory takings and access to private
property. A similar comment asserted that allowing shared title to
range improvements gives away some of the public rights on public
lands, making it more difficult for the public to redirect or
reallocate the use of public lands as priorities change. The comment
stated that public rights should not be ``given away'' and that they
would have to be purchased back at a later date as circumstances
change. Another comment questioned whether future rights or privileges
to access ``titled'' range improvements will be conveyed to those
holding the title that would not be extended to the general public. The
comment requested that we clarify whether any priority would be
conveyed to the ``titled'' holder for any land leases.
BLM is choosing to share title to range improvement projects
constructed in the future under Cooperative Range Improvement
Agreements to encourage greater private investment in range
improvements. This is not inconsistent with the TGA. Under the final
rule, permanent structural range improvements will be jointly owned by
the United States and permittees in proportion to their respective
investments. The final rule provides operators an opportunity to
maintain some asset value for their investments in range improvements,
and thereby encourages private investments in them. However, an
operator's interest in a permanent structural range improvement would
not reduce BLM's ability to manage or obtain access to public lands.
Sections 4120.3-1(e) and 4120.3-2(d), which are not changed in the
final rule, provide that a cooperative range improvement agreement
conveys no right, title, or interest in any lands or resources held by
the United States, and does not confer upon a cooperator or permittee
the exclusive right to use a range improvement or the affected public
lands. Under these provisions, cooperative range improvement agreements
would continue to include provisions that protect the interests of the
United States in its lands and resources, and ensure BLM's management
flexibility on public lands.
Title to range improvements has no bearing on whether or to what
extent BLM will allow access. Individuals would still have to seek
authorization for access to maintain range improvements, whether they
hold title to them or not. BLM gives no special privileges to
``titled'' holders of range improvements.
BLM disagrees that a joint title to range improvements creates
``takings'' issues. The full extent to which permittees and lessees may
be eligible for compensation is spelled out in the existing
regulations. The existing regulations already assure that permittees
and lessees are appropriately compensated for their investment in range
improvements that can no longer be used because of government action.
Section 4120.3-6(c) provides that ``whenever a grazing permit or lease
is canceled in order to devote the public lands covered by the permit
or lease to another public purpose, including disposal, the permittee
or lessee shall receive from the United States reasonable compensation
for the adjusted value of their interest in authorized permanent
improvements placed or constructed by the permittee or lessee on the
public lands covered by the permit or lease.'' The final rule does not
change this requirement for compensation. The regulations do not
address compensation for other types of cancellations. For example,
there is no provision addressing compensation where permits are
canceled for noncompliance. In another example, if a permittee or
lessee voluntarily sells his property and interest, he may negotiate
compensation with the new owner for the permittee's share of a range
improvement title. However, BLM would not be a party to that
transaction, except to decline to approve the transfer of the
preference in the event that the new owner has not agreed to compensate
the transferor, as described in section 4120.3-5.
Some comments concluded that the change in section 4120.3-2 gives
permittees and lessees exclusive title to new range improvements. Other
comments opposed the change because, they asserted, it could create an
interest in the land prohibited by the TGA. A related concern expressed
by comments was that BLM would be unable to take the management actions
needed to sustain rangeland health when range improvements were owned
by permittees, and that BLM's authority to manage its grazing
allotments would be limited. One comment took the opposite view that
the change in the rules was not necessary, because the ranchers already
have property rights on public lands.
The rule change does not create an exclusive right, title, or
interest in the public land, which is prohibited by the TGA. Section
4120.3-2(b) specifically states that shared title to range improvements
is ``[s]ubject to valid and existing rights.'' The regulations are
equally clear on the creation or the existence of an interest in the
land prohibited by the TGA. Holding a joint title to an improvement
does not create a permittee interest in the public land, and will not
limit BLM's ability to manage grazing allotments. Section 4120.3-1(e)
states, ``A range improvement permit or cooperative range improvement
agreement does not convey to the permittee or cooperator any right,
title, or interest in any lands or resources held by the United
States.'' Since the United States retains ownership of the land, and
shares ownership of the improvements, BLM management actions would not
be constrained by a permittee's interest in a range improvement.
One comment asked whether BLM would have independent authority to
remove, replace, or modify a structure, or if the cooperator's
permission would be required. Another comment expressed concern that
``sharing of titles on permanent structures'' may limit BLM's ability
to implement effective conservation measures for sage-grouse, or to
remove or modify structures, which may be negatively affecting sage-grouse.
Cooperative range improvement agreements (which allow installation
of permanent structural range improvements) include provisions that
protect the interest of the United States and its lands and resources.
These provisions make it clear that the ownership of improvements does
not confer exclusive right to the permittee or cooperator to use the
improvement or the land affected by the range improvement work. Section
4120.3-1(a) provides that range improvements are to be installed, used,
maintained, and/or modified or removed in a manner consistent with
multiple use management. BLM retains authority to
[[Page 39460]]
specify the design, construction, and maintenance criteria for the
range improvement, and may require permittees or lessees to remove
range improvements if they no longer help achieve land use plan or
allotment goals and objectives.
Joint title to permanent range improvements will not limit BLM's
ability to take measures to protect sage-grouse. The Memorandum of
Understanding (MOU) the BLM, Forest Service, and FWS signed with the
Western Association of Fish and Wildlife Agencies (WAFWA) to conserve
the greater sage-grouse and its habitat states our commitment to
protect sage-grouse.
Several comments noted that the changes would be inconsistent with
common law or Forest Service regulations.
Nothing in the TGA ``denies the Secretary authority reasonably to
decide when or whether to grant title to those who make improvements.''
Public Lands Council v. Babbitt, 529 U.S. at 750. While we draw
parallels between Federal and common law rules in explaining the
rationale for existing section 4120.3-2, and note that the Forest
Service had a similar policy, BLM is not obligated to accept common law
rules or Forest Service statutes or policies in setting the terms for
ownership of range improvements on public lands.
One comment objected to joint title to range improvements because
it would increase BLM's administrative burden.
BLM disagrees that the proposed change will increase our
administrative costs. BLM is currently obligated to record and track
the value of contributions that cooperators provide for range
improvements, including the imputed value of their labor. This is
necessary under the current rules to meet our requirement that we
reasonably compensate a cooperator if the permit or lease is canceled
to devote public lands to another use or for other purposes. Thus, our
administrative responsibilities will exist whether BLM shares the title
to the improvement, or holds it solely in the name of the United
States. Consequently, the shared title does not result in an additional
administrative burden.
One comment expressed concern about how joint title would affect
Tribal consultation, cooperation, and coordination requirements and
whether BLM is abdicating control of these responsibilities.
BLM is responsible for consultation with the Tribes and will ensure
that the required consultation occurs for all appropriate activities on
public land. BLM does not believe that shared title with a cooperator
for a range improvement is mutually exclusive with consultation. We
again refer to section 4120.3-1(e), which states that establishing a
range improvement does not convey any right, title, or interest in any
lands or resources held by the United States. Under the final rule, BLM
retains control of when and where improvements are installed, and other
terms and conditions of the development (section 4120.3-1). Also, the
cooperators' title and interest are limited to the proportion of
structural improvements in which they invested. Considering these
factors, cooperative range improvements should have no effect on Tribal
consultations, BLM control of the land, or any Indian trust
responsibilities.
Several comments observed that evidence is absent or inconclusive
that joint ownership of title to improvements encourages permittees to
invest in further improvements, thereby improving range conditions, or
increases the permittee's ability to secure a loan.
State-by-state data on range improvements is shown in the EIS in
Table 3.4.3.1. It is clear from the data that the number of new range
improvements has declined since 1995 when the rule was last changed.
The number has declined in every state with grazing on public land. The
average decline is 38 percent. From 1982 to 1994, BLM authorized an
average of 1,945 range improvements per year. From 1995 to 2002, we
authorized an average of 1,210 per year. Several factors may be
contributing, but it is reasonable to conclude that some of that
decline may have been the result of the 1995 rule change. It is logical
to assume that sharing title among cooperators and the United States
provides the opportunity to maintain some asset value for investments
made, thereby encouraging and facilitating private investment in range
improvements. A permittee's or lessee's belief that sharing the title
to improvements in which he invests contributes to stable ranch
operations is also significant. Shared title to range improvements also
provides an opportunity for permittees and lessees to document
investment in their business enterprises, which is useful for securing
business capital and demonstrating value of their overall private and
public lands operations. Permittees and lessees perceive this
recognition of investment as crucial to their business and, therefore,
as an important factor when considering personal investment in range
improvements. Beyond ranch economics, range improvements are tools for
improving range conditions. Those benefits accrue to both public and
private land and resource managers. BLM may enter into a cooperative
range improvement agreement with any person, organization, or other
government entity to develop range improvements. The shared title to
such improvements is expected to serve as an incentive for all
potential cooperators to participate and partner with BLM in the
development of range improvements to assist in meeting management or
resource condition objectives.
Other comments were concerned that the impacts of shared title were
not sufficiently analyzed, including the impact of increased wildlife
use as range condition improves.
BLM analyzes the anticipated impacts of shared title in the FEIS on
pages 4-25, 4-31, 4-42, and 4-48. To the extent that shared title
provisions will stimulate investment in range improvements intended to
improve or enhance grazing management practices, or the quantity and
quality of forage, BLM expects that such actions will result in
improved habitat for wildlife. BLM considers improvement in wildlife
habitat that may result from range improvements, and subsequent upward
trend of overall watershed condition, to be benefits of the final rule.
However, the nature of the regulatory change does not lend itself to
broad analysis of the topic raised by comment. Anticipated impacts that
may result from increased wildlife use because of improvements,
regardless of whether they are constructed as a result of the shared
title provision, will be analyzed under NEPA on site-specific basis as
part of the preliminary work that precedes the construction of any
range improvement.
Some comments questioned the fairness of sharing title to
improvements with permittees and lessees. They regarded the assignment
of shared title as preferential treatment that is undeserved when terms
and conditions of permits or leases are violated. One comment
disapproved of shared ownership of improvements because they would be a
constraint on other permittees or lessees in a common allotment.
BLM's commitment to fairness is an important aspect of the joint
title to range improvements. A permittee's or lessee's share of the
title to a development in which he or she invests has no effect on
BLM's administration of terms and conditions of the grazing permit or
lease. Under section 4120.3-6(c), permittees and lessees are only
compensated for the adjusted value of their interest in range
improvements in
[[Page 39461]]
the event the permit or lease must be canceled to allow the land to be
devoted to another purpose. There is no compensation if there is no
remaining value of their interest in the improvement. BLM believes this
is an equitable approach. If a permittee or lessee loses his grazing
preference due to noncompliance with the permit or lease, there is no
compensation for range improvements that remain on the allotment.
However, he or she would be given the opportunity to remove
improvements unneeded by BLM. The former permittee or lessee would also
be responsible for restoration of the improvement site.
Regarding common allotments, planning and implementation of range
improvements on common allotments is an inclusive process involving all
permittees or lessees authorized to graze in the allotment. As provided
in section 4120.3-2(a), BLM enters into cooperative range improvement
agreements to achieve management or resource condition objectives and
does so through a collaborative process.
One comment suggested that all range improvements, not just
permanent improvements, should be eligible for shared title based on
contributions of the cooperator.
BLM currently allows title to temporary, removable range
improvements installed under range improvement permits to be held by
the permittee or lessee (section 4120.3-3). If the comment was
suggesting that BLM should share title to non-structural improvements
that cannot reasonably be removed from the land, such as a seeding or a
prescribed fire treatment, BLM rejects this suggestion because it is
impractical and would unduly complicate land administration. Where a
cooperator permittee or lessee has contributed to an improvement that
cannot be removed from the land, and BLM cancels the associated grazing
permit or lease to devote the land to another public purpose that
precludes livestock grazing, the permittee will be eligible for
compensation for the adjusted value of their interest in the
improvement, as documented in a cooperative agreement, under section
4120.3-6(c) and Sec. 402(g) of FLPMA (43 U.S.C. 1752(g)). BLM will
continue to hold 100 percent of the title to range improvements that
cannot be removed from the land.
One comment expressed concern about who would be liable if a public
land user was injured in connection with a privately owned improvement.
Based on our previous experience with joint Federal-private
ownership, we do not recognize any liability issues that should be
addressed in this rulemaking. Issues of liability generally are fact-
specific, and are best resolved on a case-by-case basis. Moreover,
cooperative range improvement agreements will continue to include
provisions that protect the interests of the United States in its lands
and resources.
One comment asked that we clarify agency and permittee
responsibilities under the Endangered Species Act (ESA) and NEPA for
shared range improvements. Another comment stated that if grazing
permittees share title to range improvements, they may be accountable
for any taking under ESA that occurs as a result of these improvements.
Another comment stated BLM should consider and allow modification of
range improvements if they are negatively affecting sensitive species.
In addition, this comment stated that modification may be necessary to
minimize the effects and ``avoid jeopardy to listed species.'' One
comment stated that, at a minimum, the rule should make it clear that
ESA section 7 consultation requirements and consideration of state-
listed or sensitive species would still be applicable to grazing activities.
Additional clarification is not needed to set forth BLM's
responsibility to consult with the appropriate service agency pursuant
to the ESA when a discretionary BLM action triggers the application of
the ESA. BLM will continue to fulfill the requirements for consultation
in accordance with Section 7 of the ESA. Section 4120.3-1(f) provides,
and will continue to provide, that ``proposed range improvement
projects shall be reviewed in accordance with the requirements of
[NEPA].'' The fact that a permittee holds a joint title with BLM for a
range improvement has no effect on BLM's obligations under the ESA and
NEPA.
As part of NEPA analysis and the decision making process, BLM
considers potential impacts of the range improvements to special status
species (including listed species) and either avoids or mitigates them.
Listed species are protected by the ESA. Therefore, BLM is obligated to
make modifications as necessary to avoid jeopardy or to minimize
incidental take as directed by the FWS or the National Marine Fisheries
Service in a biological opinion.
BLM expects individuals to take steps to ensure they are in
compliance with the appropriate provisions of ESA. It is a prohibited
act under section 4140.1(b)(2) for any person to install, use,
maintain, modify, or remove range improvements on public lands without
BLM authorization. If any person did such an act without BLM
authorization and thereby violated the ESA, he or she would be liable
for the applicable penalties for violations of the grazing regulations
as well as those for any violation of the ESA.
An additional comment suggested that BLM should retroactively
provide for shared title to range improvements constructed under
cooperative range improvement agreements after the 1995 rules changes
took effect.
The Department has declined to make the proposed change retroactive
to 1995, since such retroactive changes have been discouraged by the
Supreme Court (Bowen v. Georgetown University Hospital, 488 U.S. 204
(1988)).
Section 4120.3-3 Range Improvement Permits
We modified paragraph (c) in this section of the proposed rule to
remove a reference to conservation use.
We received two comments recommending that BLM authorize permanent
range improvements under range improvement permits, noting that such
permits are allowed under Section 4 of the TGA.
Under Section 4 of TGA (43 U.S.C. 315), the Secretary has the
authority to determine whether to issue permanent range improvements
under range improvement permits or under cooperative range improvement
agreements. BLM believes it is in the best interests of the public to
authorize all permanent developments such as spring developments,
wells, reservoirs, stock tanks, and pipelines under cooperative range
improvement agreements to promote achievement of management and
resource objectives. We have not adopted this recommendation in the
final rule.
We received an additional comment suggesting that BLM consult with
all permittees associated with an allotment prior to approving
nonrenewable use, and require cooperation from all permittees or
lessees with the temporary operator.
Under section 4130.6-2, which addresses nonrenewable grazing
permits and leases, BLM is required to consult, cooperate, and
coordinate with all affected permittees or lessees, as well as the
state having lands or responsibility for managing resources within in
the area, before issuing a nonrenewable grazing permit or lease. If BLM
issues such a nonrenewable permit or lease, the preference permittee or
lessee shall cooperate with the temporary authorized use of forage by
another operator. BLM agrees that all preference permittees or lessees
in an allotment
[[Page 39462]]
with temporary use authorized should be consulted and should cooperate.
Therefore, we have amended section 4120.3-3(c) in the final rule by
adding a cross-reference to the section 4130.6-2 requirement.
One comment urged that we revise section 4120.3-3(c) to remove any
reference to the permittee or lessee cooperating with a temporary
authorized use of forage by another operator, stating that BLM should
not have the discretion to allow someone other than an allotment's
preference holder to graze in an allotment. Doing so, according to the
comment, could cause conflict among BLM, the preference holder, and the
temporary grazers.
BLM needs the discretion to authorize grazing use on public lands
when forage is available. We realize that there is potential for
conflict, as the comment describes. In the final rule, we have
rewritten Sec. 4120.3-3(c) to make it clear that BLM will consult with
the preference operator before authorizing such use.
Section 4120.3-8 Range Improvement Fund
We amended this section only to correct a misspelling. One comment
objected to the correction, but provided no reason. We have made no
changes in the final rule.
Section 4120.3-9 Water Rights for the Purpose of Livestock Grazing on
Public Lands
We proposed to amend this section by removing the requirement that
livestock water rights be acquired, perfected, maintained, and
administered in the name of the United States to the extent allowed by
the laws of the states where the rights would be acquired. We made this
change to provide BLM greater flexibility in negotiating arrangements,
within the scope of state processes, for construction of watering
facilities in states where the United States is allowed to hold a
livestock water right. BLM continues to have the ability to acquire the
water right to the extent allowed by state water law.
We received many comments objecting to the change in the water
rights provision. Most common were the general concerns that the
proposed change communicated less commitment by the United States to
hold the water rights on public land, which would result in more water
rights in the name of permittees or others, complicating multiple use
land management in a variety of ways. The identified complications
included clouding title, hindering land exchanges and transfers of
preference, encouraging takings claims by privatizing public resources,
and devaluing public land. The over-riding concern of these comments
was the supposed rejection by the proposed rule change of the
fundamental connection of water to the land.
We believe that the predicted complications that may be triggered
by removing the requirement that water rights for livestock use be held
in the name of the United States have a low probability of occurring.
First, an increase in the number of water rights for livestock use on
public lands held in the name of permittees or lessees is probable, but
we believe it unlikely to compromise our ability to manage public lands
effectively in accordance with FLPMA's requirement of multiple use
management. Use of water on public land for wildlife, recreation,
mining, and other uses will continue with rights for those uses usually
in the name of the United States. By removing the requirement that
water rights be acquired, perfected, maintained, and administered in
the name of the United States, BLM may be in a position to negotiate
better cooperative agreements, resulting in improved cooperation
between BLM, states, and permittees and lessees. Second, ownership of
water rights by permittees will have no effect on title to the land,
since land remains in the ownership of the United States (section
4120.3-1(e)). Third, complications in exchanges or preference transfers
resulting from permittee ownership of water rights for livestock use
could occur, although we do not expect them to be common. When they
occur, they can often be resolved through negotiated settlements among
all parties. Moreover, in most cases, BLM will not exchange or dispose
of large tracts of the public lands; thus, private party ownership of
water rights on these lands will have little impact. In addition, a
transfer of preference would likely involve a transfer or sale of a
permittee's base property or base water to a new permittee. A
settlement would have to be reached between transferor and transferee
on compensation for range improvements and water rights. BLM does not
believe that the necessity for this type of agreement will hinder
transfer. We disagree that private ownership of water rights on public
lands will lead to successful takings claims. A water right is a
property right that is distinct from title to the land managed by BLM.
Land management decisions do not affect title to water. Finally, we
disagree with the comment that the value of public land may be reduced
if BLM does not control the water rights. The value of the land and the
water right are two separate things. BLM also believes, however, that
any such decrease will not affect our ability to manage the public lands.
Several comments anticipated a loss of incentive to comply with
grazing rules or consult and cooperate with BLM by permittees who own
the livestock water rights.
We disagree that this is likely to occur. Many water rights are
currently held by permittees, or jointly owned with BLM, and we have
not seen evidence that holding a water right discourages cooperation or
compliance with terms and conditions of grazing permits. BLM's
authority to take action under subparts 4140, 4150, and 4160 is not
affected by the name in which the water right is held.
Two comments observed that the proposed rule was inconsistent with
laws governing water rights ownership on most state land, on land
managed by the U.S. Forest Service, and on privately owned land.
BLM agrees that there is inconsistency among the laws and policies
governing water rights ownership in states and agencies throughout the
country. For example, the BLM grazing program is guided by different
laws, regulations, and policies than the Forest Service's program.
Further, states assign water rights under different state laws,
regulations, and policies. In this patchwork regulatory setting the
flexibility afforded by the proposed rule will benefit BLM in
cooperating with permittees and states. We believe that any
inconsistencies are unlikely to interfere with BLM land management.
Several comments questioned why permittees had any need for a water
right that was associated with a water development. One asked why water
right ownership would affect a permittee, as long as he had the water
needed for his operation. Another said that water right ownership by
the permittee was unnecessary now that the permittee has title of the
water development. Another stated that the water right should be
public, if BLM was investing public funds in the developments.
Although many water rights for livestock use are associated with
water developments, it is not always the case. Moreover, water rights
are separate and distinct from water developments. The water right
provides for appropriation of water for a specified beneficial use for
a specified season of use according to the applicable state law. A
cooperative range improvement agreement authorizes the development of
and provides the terms, specifications, and
[[Page 39463]]
conditions for the construction, maintenance, or abandonment of a water
development or other range improvements. The permittee or lessee and
BLM share the cost of and title to the development; not all the funds
used for a water development are public. Moreover, BLM does benefit
from water developments, regardless of funding, because water
developments improve grazing management and watershed conditions.
One comment urged BLM not to implement the proposed change because
it would encourage more livestock water developments to the detriment
of wildlife.
Ownership of water rights does not affect the approval of water
developments. Further, BLM disagrees that encouraging more livestock
water developments would harm wildlife. Water developments are
constructed to improve grazing management and watershed condition.
Before BLM authorizes a water development, the development is analyzed
in accordance with NEPA. Such analysis will consider the development's
impacts on wildlife, positive as well as negative, and the ultimate
authorization would include the mitigation measures necessary to limit
any negative impacts.
Several comments stated that BLM should not acquire or retain water
rights for livestock use on public lands.
BLM disagrees with this statement as contrary to current and
proposed regulations, and contrary to the intent of most state water
laws to put water to beneficial use by the senior appropriator and
claimant. Neither the current regulations nor this final rule prevents
BLM from filing on water rights now or prospectively, or filing jointly
with a permittee or lessee, when it is in the interest of good
rangeland management, supports meeting the objectives of BLM land use
and activity plans, and is in accordance with state law.
One comment stated that the changes made in the BLM grazing
regulations in 1995 that require livestock operators and BLM to use
cooperative agreements to authorize new permanent water developments
and direct the United States, if allowed by State water laws, to
acquire livestock water rights on public lands, should be retained in
the grazing rule.
The final rule requires BLM to use cooperative range improvement
agreements to authorize all new permanent water developments under
section 4120.3-2(b). The intent of the rule is to provide greater
flexibility to the United States in this regard.
One comment recommended that BLM better explain its need to pursue
water rights cooperatively with the permittee.
Under the current grazing regulations, BLM must seek to acquire,
perfect, maintain, and administer state-based livestock water rights in
the name of the United States, to the extent allowed by state law. BLM
therefore has little flexibility to seek alternative arrangements with
permittees. We expect that the increased flexibility allowing
cooperative pursuit of livestock water rights to stimulate greater
permittee and lessee support for the development of additional water
resources on public land in accordance with resource objectives found
in BLM land use plans, allotment management plans, activity plans, and
vegetation management plans. This will contribute to an overall
beneficial effect on vegetation resources. Having determined that
permittees and lessees can hold livestock water rights, BLM may be able
to negotiate better cooperative agreements, resulting in improved
cooperation among BLM, states, and permittees and lessees.
One comment recommended that BLM discuss the environmental
consequences to sensitive wildlife and plants if BLM were to retain the
existing provision on water rights, that is, solely acquire livestock
water rights from the state, without cooperatively sharing that right
with a permittee or lessee.
BLM has observed a significant decrease in the number of water-
related range improvements (especially reservoirs and wells) since
adopting the existing regulations in 1995. It is widely recognized that
water-related range improvements may be beneficial to sensitive
wildlife and plants. One reason BLM is proposing to change the existing
regulations is to provide an incentive for operators to install water-
related range improvements, and thereby potentially benefit sensitive
wildlife and plants.
Another comment stated that it is unclear whether BLM's ability to
make changes in livestock management to protect sensitive wildlife,
plants, and their habitat will be affected by the permittee or lessee
having shared water rights.
BLM's ability to make changes in livestock management to protect
sensitive wildlife, plants, or their habitat will not be affected by
permittee or lessee sharing ownership of livestock water rights. The
current grazing regulations, at section 4130.3-3, provide BLM with
authority to make changes to the terms and conditions of a grazing
permit or lease when management objectives are not being met or when
grazing does not conform to the provisions of subpart 4180
(Fundamentals of Rangeland Health and Standards and Guidelines). This
provision is not changed in the final rule. Permittee or lessee
ownership of livestock water rights does not affect BLM's management
discretion and authority.
Many livestock water rights are currently held by permittees or
lessees, or jointly owned with BLM. BLM has seen no evidence that
holding a livestock water right discourages cooperation or compliance
with the terms and conditions of grazing permits. Nor is there evidence
that BLM's ability to enforce and administer other provisions of the
grazing regulations is affected by a permittee or lessee holding a
livestock water right.
One comment recommended that BLM clarify its ability to control water
at a spring if the water rights are shared with a permittee or lessee.
Shared livestock water rights are not expected to impair BLM's
ability to control water at a spring. In cases of jointly held water
rights, water cannot be moved from the source without the consent of
both owners, and neither owner can prevent usage of the water at its
source by the other owner.
Two similar comments stated it is extremely important for BLM to
seek ownership of water rights where allowed by state law, and that if
BLM authorizes a water development on public land, the associated water
rights should belong to the public. One of the commenters stated that
there is no more important resource for fish and wildlife in the arid
west than water. A third comment expressed a variation of this concern.
The BLM agrees that water is an important resource for fish and
wildlife in the West. The proposed rule does not mean BLM will not seek
ownership of livestock water rights when allowed by state law. Rather,
the proposed revision will allow BLM increased flexibility to seek
alternative approaches to ensuring that water developed on public lands
can be used to benefit multiple uses, including wildlife uses. Use of
water on public land for wildlife, recreation, mining, and other uses
will continue with rights for those uses usually in the name of the
United States.
A comment asserted the need for BLM to have flexibility in
cooperatively pursuing water rights with the permittee or lessee. The
comment stated that we should make it clear whether under a cooperative
water right BLM would have the senior water right.
The increased flexibility provided by the final rule may stimulate
greater permittee and lessee support for the
[[Page 39464]]
development of additional water resources on public land. These
resources would be developed in accordance with resource objectives
found in BLM land use plans, allotment management plans, activity
plans, and vegetation management plans, contributing to an overall
beneficial effect on vegetation resources. Agreeing that permittees and
lessees can hold livestock water rights should enable us to negotiate
better cooperative agreements, and in turn leading to improved
cooperation between BLM, states, permittees, and lessees.
Whether the United States holds a senior livestock water right in
joint-ownership situations would depend upon individual circumstances
and priority dates under applicable state water law. BLM's ability to
negotiate the terms of joint ownership agreements with permittees is
critical in being able to achieve acceptable settlement to avoid
litigation of water rights and to enhance accomplishment of federal
responsibilities in land management.
One comment asked whether removing the provision that BLM can
acquire livestock water rights would put the state in a position where
it could prevent BLM from holding livestock water rights. The comment
also asked whether this revised provision pertains only to livestock
waters, or also to BLM filings for wildlife, fish, or instream flow.
States control their water law procedures for granting,
adjudicating, and administering livestock water rights, independent of
the content of the Federal grazing regulations. Therefore, regardless
of whether the existing regulations remain in place or whether the
proposed rule is adopted, states may prevent BLM from holding livestock
water rights. In fact, after 1995, when the grazing regulations were
changed to require the United States to file for livestock water ``to
the extent allowed by State law,'' two states--Nevada and Arizona--
enacted laws to prevent BLM from claiming livestock water rights.
The grazing regulations address state water rights for livestock
watering purposes, not other purposes. The regulations therefore do not
affect other potential BLM filings, such as for fish, wildlife, or
instream flow.
One comment pointed out that BLM has authority and discretion to
apply penalties for specific prohibited acts. The comment stated that
BLM may withhold, suspend, or cancel a grazing permit, and recommended
clarification of the effect of sharing water rights if BLM needs to
impose a penalty for a prohibited act if the permittee had a shared
livestock water right on that allotment. The comment stated that a
state water right can be looked upon as a property right and asked
whether this could make it difficult for BLM to transfer a canceled
permit to a new permittee.
BLM's authority and discretion to impose penalties for prohibited
acts is independent of and unaffected by ownership of livestock water
rights. BLM's authority to take action under subpart 4140 (Prohibited
Acts), subpart 4150 (Unauthorized Grazing Use) and subpart 4160
(Administrative Remedies) is not affected by the name in which the
water right is held. Thus, when a permittee engages in a prohibited act
that triggers BLM's authority to suspend or cancel the grazing permit
(e.g., grazing in violation of the terms and conditions of the permit),
BLM may take appropriate action, regardless of who owns the water
right. Indeed, even where a permittee has sole ownership of a livestock
water right, BLM's authority to issue a new permit is unaffected.
(Contrary to the way the comment stated the question, BLM does not
transfer a canceled permit. BLM would issue a new permit, which may
have terms and conditions reflecting the availability of less water for
watering livestock within the allotment if the former permittee
retained the water rights, unless the new permittee has acquired the
water rights from the former permittee). The suspended or canceled
permittee may sell or otherwise transfer its water rights in the
absence of its ability to make use of the water right by grazing on
public lands.
Another comment stated that it is unclear how cooperative water
rights will affect BLM's ability to manage sensitive wildlife and
plants on an allotment, and suggested that BLM management would become
less flexible if water rights become cooperative.
The proposed water right policy changes would have no effect on
water resources as long as the water resources remain available for use
on public land. Also, the changes in the final rule should have no
effect on special status species, as the changes largely provide
clarification of the existing regulations or bring regulations into
compliance with court rulings.
BLM does not anticipate significant impacts on special status
species from the new livestock water rights policy for several reasons.
First, the number of new water developments on which permittees would
be able to claim livestock water rights will be very small relative to
the total number of water sources on public land. Before such
developments are constructed, BLM will analyze them under NEPA to
identify potential impacts on special status species, and impose terms
and conditions in the cooperative range improvement permit to protect
those species. Current land use management plans, activity plans,
grazing permits, right-of-way permits, and other land use
authorizations govern the usage of water sources that have already been
developed. They also govern usage of undeveloped water sources that
provide livestock water. A claim for a livestock water right by a
grazing permittee on existing undeveloped or developed water sources
would not be capable of changing on-the-ground management at the source
without explicit authorization from BLM.
One comment stated that ``giving up'' water rights inhibits BLM's
flexibility in making management decisions and has the potential for
impacts on water resources.
We disagree that BLM is ``giving up'' any of its water rights or
its ability to obtain new water rights under state law. Moreover, the
final rule will not result in less flexibility for water usage on
public lands. In accordance with FLPMA's requirement of multiple use
management, use of water on public land for wildlife, recreation,
mining, and other uses will continue with rights for those uses usually
in the name of the United States. Section 4130.3-3 provides BLM
authority to make changes in the terms and conditions of a grazing
permit or lease when it authorizes active use or a related management
practice that does not meet management objectives or otherwise does not
conform to the standards and guidelines established under subpart 4180.
Usage of public lands is also subject to BLM land use authorizations,
which contain appropriate terms and conditions to support continued
multiple uses on public lands. Thus, the number of AUMs in a grazing
permit or lease, or any other term or condition, is unrelated to the
extent of state-granted water rights. Also, many livestock water rights
are currently held by permittees, or jointly owned with BLM, and BLM
has not seen evidence that holding a livestock water right discourages
cooperation or compliance with terms and conditions of grazing permits.
One comment expressed concern that, although the rule stipulates
livestock water development, the holder of the water right could
subsequently request a transfer of use for some other purpose. The
comment stated that this policy sacrifices future public value and
multiple use opportunities that water might provide, such as in-stream
flows, wildlife habitat, and recreation use. The comment went on to say
that allowing
[[Page 39465]]
private acquisition of a water right gives ownership of a public
resource to a private entity in perpetuity, and concluded that, without
landowner control of water, public benefit and associated land
management opportunities will be severely restricted.
States have control over their own water law procedures regardless
of the content of Federal grazing regulations. The 1995 regulations
acknowledged this control by directing the United States to acquire
stock watering rights ``to the extent allowed by State law.'' Before
1995, permittees were able to file joint water rights applications with
the United States on livestock water sources.
The concerns raised in the comment related to removing the
requirement that water rights for livestock use be held in the name of
the United States are unlikely to occur. An increase in the number of
water rights for livestock use on public lands held in the name of
permittees or lessees is probable, but unlikely to compromise BLM's
ability to manage public lands in accordance with FLPMA's multiple use
mandate. Use of water on public land for wildlife, recreation, mining,
and other uses will continue with water rights for those uses usually
in the name of the United States. By agreeing that permittees and
lessees can hold livestock water rights, BLM anticipates that it will
be able to negotiate better cooperative agreements, resulting in
improved cooperation between BLM, states, and permittees and lessees.
Ownership of water rights by permittees will have no effect on title to
the land, since land remains in the ownership of the United States.
Exchanges or preference transfers resulting from permittee ownership of
water rights for livestock use could occur, although BLM does not
expect them to be common. When they occur, they can often be resolved
through negotiated settlements among all parties.
Section 4120.5-2 Cooperation With Tribal, State, County, and Federal
Agencies
We amended this section in the proposed rule by adding a new
paragraph (c) adding state, local, and county-established grazing
boards to those groups we routinely cooperate with in administering
laws and regulations relating to livestock, livestock diseases, and
sanitation. Field-level range improvement and allotment management
planning programs will benefit from the additional perspective that
locally established grazing advisory boards could provide.
In the final rule, we have amended paragraph (c) to add Tribal
grazing boards to the list of entities with which we are required to
cooperate. We also modified the language in paragraph (c) to make it
clear that BLM is required to cooperate only with Tribal, state,
county, or local grazing boards that are established under government
authority, as opposed to private organizations that assume the title
``grazing board.'' In addition, we amended the heading of the section
and the introductory text so that they refer to Tribal as well as the
other government agencies.
Many comments supported the addition of paragraph (c) to section
4120.5-2. These comments gave a variety of reasons.
A comment stated that the regulations should require agency
cooperation with state, county, and local grazing boards, because the
creation and use of such boards would give BLM land managers direct
resource-related information from subject matter experts in the local
areas, increasing our ability to devise appropriate strategies for
managing public lands under the multiple-use mandate. Another supported
the amendment because state and local governments and local citizens
have more at stake in the health of the land in their area than does
BLM. The comment said that where state and local governments have
established grazing advisory boards to provide for the health and
management of public lands in their jurisdiction, they should be given
maximum opportunity to do so. Other comments supported the proposed
provision because consultations between grazing boards and BLM
officials will provide for improved working relations on issues of
significant importance to all stakeholders, and the new provision also
fulfills statutory and regulatory requirements for consultation,
cooperation, and coordination. One comment stated that grazing advisory
boards can be used to help resolve conflicts between the agency and
allotment owners, while another said that local grazing advisory boards
allow for more efficient use of agency resources and money.
BLM intends cooperation with grazing boards to provide BLM land
managers local resource-related information from subject matter experts
in local areas, thus increasing BLM's ability to develop and recommend
appropriate strategies in developing allotment management plans and
planning range improvements. BLM agrees that cooperation with local,
county, and state agencies, governmental entities, and grazing boards
established by state, county, and local governments will help us in
considering how best to apply land management practices and spend range
improvement funds. Cooperation with all groups and individuals,
including Tribal entities, to achieve the objectives of grazing
management, is required in section 4120.5-1 of the existing grazing
regulations. Existing policy and law provides for the consultation,
cooperation, and coordination with these groups as well as others. BLM
recognizes that these entities have a high stake in promoting healthy
public lands in their areas. We therefore also intend the provision to
direct BLM field managers to cooperate with state, county, and local
government boards in carrying out the boards' functions. That is, we
will participate in their meetings, provide information on request when
it is legal and appropriate to do so, answer inquiries, provide advice,
and generally interact with the boards in a cooperative manner. The
amended regulations would formalize the role of grazing boards in
providing input and helping to avoid and/or resolve conflicts between
BLM and grazing permittees and lessees. However, it is not the intent
of the regulations to confer upon any grazing board cooperating agency
status.
One comment stated that BLM should provide an opportunity for local
collaborative groups to be creative and proactive in the management of
local public lands. The comment added that private lands adjacent to
the public lands--often the base property for permittees--are usually
the most important habitat (for example, critical winter range) for
many wildlife species.
BLM agrees that informal collaboration with local publics is
beneficial to management of public lands and recognizes that adjacent
private lands and land and water base properties often provide
important wildlife habitats, for the same reasons that historically
these lands were more likely to have been homesteaded or otherwise
converted from public domain to private ownership. Our regulations at
sections 4120.5-1 and 4120.5-2 require us to cooperate with individuals
and other local (along with Federal, state, and Tribal) entities, to
the extent appropriate and consistent with the applicable laws of the
United States, to achieve the objectives stated in the regulations.
However, the only requirement added in section 4120.5-2 is that we
cooperate with government and government-created boards, not informal
citizen groups, in the administration of laws and regulations relating
to livestock, livestock diseases, sanitation, and noxious weeds.
[[Page 39466]]
Many comments opposed the addition of paragraph (c) to section
4120.5-2. These comments also gave a variety of reasons.
One comment stated that the provision gives the impression that
grazing board concerns have greater weight than the interests of other
groups. The comment said that the perspectives of these other groups
can also be valuable to the BLM decisionmaking process. Others stated
that it will reduce BLM's role as an independent land management
agency, and that it will duplicate or supplant the current arrangement
BLM has with, and will undermine the efforts of, the RACs.
As a general matter, BLM considers the views of all stakeholders
providing input into BLM's decisionmaking process, but will not be
constrained in its management by input from grazing boards. This means
that, assuming we have the manpower, we will attend their public
meetings when invited, provide information when requested, and invite
their input when appropriate. BLM will cooperate with the boards to
facilitate their review of range improvements and allotment management
plans on public lands, but we will retain our independent
decisionmaking role.
The role of the RACs is broader, in that it also encompasses input
into and review of the standards and guidelines for grazing
administration under subpart 4180. There may be some overlap among
these groups in the discussion of grazing allotment management issues.
Nevertheless, this input will be valuable to BLM, broadening
perspectives as to the issues. As a result, we expect that our
decisionmaking process will be more effective and our data will be more
comprehensive. Of course, laws, regulations, policy, and a multitude of
other factors also guide and direct BLM's decisionmaking process.
A comment from a state wildlife management agency stated that
specific language should be added to paragraph (c) to address
appropriately the requirements for consultation with state wildlife
management agencies called for in several Federal laws, including the TGA.
Section 4120.5-1 requires BLM to cooperate, to the extent
appropriate, with Federal, state, (including state wildlife management
agencies), Tribal, and local government entities, institutions,
organizations, corporations, associations, and individuals to achieve
the objectives of the regulations in part 4100. Section 7 of the ESA
requires formal consultation with FWS and/or NOAA Fisheries if a
federally-listed species may be adversely affected due to a proposed
action. Furthermore, the grazing regulations specifically require BLM
to consult with states having lands or responsibility for managing
resources within the area--
? Before adjusting allotment boundaries,
? Before apportioning additional livestock forage,
? Before implementing changes in active use,
? Before closing allotments or modifying grazing for
immediate protection of resources,
? During the preparation of allotment management plans,
? Before revising or terminating allotment management plans,
or issuing or renewing grazing permits or leases, including
nonrenewable permits, and
? Before modifying the terms and conditions in permits or leases.
No additional language is necessary in the grazing regulations to
ensure coordination with state wildlife management agencies.
One comment stated that paragraph (c) should be removed because
many states, counties, and local areas do not have any established
grazing boards. Another stated that it is not clear how these grazing
boards are defined or established, nor what it would take for a grazing
board to qualify as ``established.'' One comment stated that paragraph
(c) was tantamount to the reestablishment of grazing advisory boards,
the authority for which expired on December 31, 1985 (43 U.S.C. 1753(f)).
The establishment of grazing boards is at the discretion of state,
county, and local governments, and is not required or authorized by
BLM. This rule change formally recognizes the benefit of cooperating
with existing and any future Tribal, state, county, or local
government-established grazing boards in reviewing range improvements
and allotment management plans. Each specific grazing board, or the
governmental entity creating or authorizing it, determines the grazing
board's establishment, internal organization, and role.
One comment stated that BLM should include other groups and boards
representing various public land resource interests in the local area
(such as Tribal Associations) in section 4120.5-2(c), because many of
these groups and agencies utilize BLM lands.
In section 4120.5-2 of the grazing regulations, the authorized
officer is required to cooperate, to the extent consistent with
applicable laws of the United States, with the involved state, county,
and Federal governmental agencies in administering certain laws and
regulations. Section 4120.5-1 requires cooperation, to the extent
appropriate, with Federal, state, Tribal, and local entities, as well
as individuals, institutions, organizations, corporations, and
associations to achieve the objectives of grazing management.
Cooperation with grazing boards, where they exist, can give BLM land
managers resource-related information from local subject matter
experts, thus increasing our ability to develop appropriate strategies
for managing grazing allotments and developing range improvements under
the multiple-use mandate. We have added Tribal associations to
paragraph (c) of section 4120.5-2 in response to the comments.
One comment suggested that we expand the scope of paragraph (c) to
require cooperation with local grazing boards as to other elements of
rangeland management. The comment stated that these groups could assist
with the resolution of such issues as conflicts between permittees and
other users of the public lands and in designing monitoring programs.
Tribal, state, county, and local government-established grazing
boards are independent entities, set their own agendas, select their
own members, and determine the level of their interest in reviewing
allotment management plans and range improvements. Under this rule, BLM
will not establish, sanction, or direct the function of grazing boards.
BLM's role, as identified in the grazing regulations, is to weigh any
input from the grazing boards as well as from others as we consider
allotment management plans and range improvements. Under section
4120.5, BLM coordinates with Federal, state, Tribal, and county
government entities and RACs on a wide variety of public land
management issues and proposed actions.
One comment stated that grazing boards should be consulted but
should remain autonomous from RACs, as provided in the TGA. Another
stated that grazing boards comprised of members of the general public
may have personal concerns or pet issues that should not affect BLM
management practices.
Under the proposed grazing regulations, grazing boards established
by state, county, and local government and RACs will remain as distinct
organizations. The grazing advisory boards referred to in the TGA were
terminated in 1974 in accordance with Section 14 of the Federal
Advisory Committee Act of 1972 (5 U.S.C. App. 1), and should not be
confused with the grazing boards in the proposed grazing regulations.
These grazing boards are
[[Page 39467]]
neither established nor sanctioned by BLM. Partly in response to the
confusion and concerns demonstrated by these comments, we are amending
paragraph (c) in the final rule to add the word ``government'' after
the word ``local.'' This should make it clear that the grazing boards
referred to in the provision with which BLM must cooperate in
administering livestock laws are only those created or sanctioned by
state, county, Tribal, or local government entities.
One comment suggested that only affected permittees, and not
individuals from other locations, should be consulted regarding section
4120.5-2, ``Cooperation with State, county and Federal agencies.''
That section addresses cooperation with Tribal, state, county and
Federal agencies and thus does not include a consultation requirement
with the interested public, that is, individuals. The section does
require BLM to cooperate with Tribal, state, county, and other Federal
agencies regarding the administration of laws and regulations related
to livestock, livestock diseases, sanitation, and noxious weeds. No
changes were made in the final rule as a result of this comment. BLM
believes it is important to continue to work cooperatively with other
governmental authorities regarding the administration of laws and
regulations related to livestock, livestock diseases, sanitation, and
noxious weeds.
One comment expressed concern that the rule may lead to
inconsistency and inefficiency between BLM and the Forest Service in
the areas of water rights, management of ``federal trust'' resources,
range improvement ownership, temporary nonuse, prohibited acts, the
definition and role of the interested public, and the ability of the
agencies to ensure that fish and wildlife are managed in a sustainable
manner across administrative boundaries. One comment stated that,
although the FWS is not specifically mentioned in the FEIS,
consultation with the Service should occur as required under Section
7(a)(2) of the ESA (50 CFR 402.14).
BLM will coordinate and consult with the Forest Service and state
agencies when administering the grazing program. Consistency with the
Forest Service regulations, though desirable at times, is not necessary
for implementing effective rangeland management practices. Specific
inconsistencies between the regulations and policies of BLM and the
Forest Service related to fish and wildlife resources have not been
identified. In general, however, inconsistencies continue to exist
largely because the two agencies have different statutory requirements
that govern their regulations and policies. However, nothing in the
proposed revisions will preclude BLM and the Forest Service from
working across administrative boundaries to manage fish and wildlife in
a sustainable manner.
BLM consults with the FWS when an evaluation of a discretionary
action results in a determination that there may be an effect on an
endangered species. Although BLM coordinated with the FWS on various
aspects of the rule, ultimately BLM concluded that the rule will have
no effect. Consultation under Section 7(a)(2) of the ESA is not
required under 50 CFR part 402 on an action that has no effect on an
ESA-listed species.
One comment referred to an MOU that BLM, the Forest Service, and
the FWS signed with WAFWA to conserve the greater sage-grouse and its
habitat. The comment stated BLM should consider the commitments of the
MOU in the proposed revisions to grazing regulations.
The WAFWA MOU outlines the roles of state and Federal partners
throughout the 11 Western States in conservation of the currently-
occupied range of the sage-grouse. Our commitments under this MOU are
compatible with grazing management. Under the MOU, BLM will continue to
coordinate with the states and local working groups to develop state
and local conservation strategies. The administrative changes in the
final rule will have no effect on this coordination commitment. In
addition, and to complement the WAFWA MOU commitments, BLM released the
National Sage-Grouse Habitat Conservation Strategy in 2004. This
strategy describes agency actions necessary to conserve the sage-grouse
and its habitat on BLM land, and includes a detailed timeline of
actions that BLM is implementing through agency directives. The grazing
rule amendments will have no effect on BLM's implementation of the
sage-grouse strategy.
One comment urged BLM to include the FWS among the entities it must
consult before changing grazing allotment boundaries under 43 CFR 4110.2-4.
Where a proposal to undertake a discretionary action under the
grazing regulations, such as designating or adjusting an allotment
boundary under 43 CFR 4110.2-4, triggers ESA consultation requirements,
BLM will meet those requirements. However, BLM does not believe it
appropriate to list in its grazing regulations all instances where
discretionary action taken under the regulations may trigger ESA
consultation.
One comment encouraged BLM to consider how the rule would affect
the ability of local sage-grouse working groups to implement
conservation actions for this species.
The working groups and their commitments are outlined in the WAFWA
MOU, and are unchanged by the proposed regulations. Site-level
decisions remain within the purview and discretion of BLM field
offices, and address sage-grouse habitat needs in an allotment-level
assessment process outlined in the existing regulations, using local
working group recommendations. BLM's ability to identify and react to
sage-grouse habitat needs will not be affected by the proposed
administrative adjustments of the grazing regulations.
Section 4130.1-1 Filing Applications
In the proposed rule, we moved the provisions on determining
satisfactory record of performance from section 4110.1 to section
4130.1-1 on filing applications, where they more logically fit. We also
amended the provisions to clarify the factors that we take into account
in determining whether an applicant for a new permit has a satisfactory
record of performance. The rule deems applicants for issuance of a new
permit or lease to have a satisfactory record of performance if:
1. The applicant or affiliate has not had a Federal lease canceled
within the previous 36 months;
2. The applicant or affiliate has not had a state lease canceled,
for lands in the grazing district where they are seeking a Federal
permit, within the previous 36 months; or
3. The applicant or affiliate has not been legally barred from
holding a Federal grazing permit or lease by a court of competent
jurisdiction.
One comment urged BLM not to adopt the proposed rule provision
regarding satisfactory record of performance, stating that the proposed
wording is an attempt to show favoritism to someone with past recent
violations that did not occur on the allotment for which the applicant
is applying. Another comment stated that permittees could avoid
violations by timing applications to particular grazing allotments
where they had not committed a violation in the last 3-year period.
The changes made provide consistent direction on what constitutes a
satisfactory record of performance. Determining a satisfactory record
of performance is not limited to grazing permit or lease violations on
the particular allotment for which an
[[Page 39468]]
application is being made. Section 4130.1-1(b)(2)(i) states that the
authorized officer will consider applicants for a new or transferred
preference to have a satisfactory record of performance when the
applicant has not had any Federal grazing permit or lease canceled for
violation of the permit or lease within the 36 months preceding the
date of application.
One comment suggested that BLM should subject a permit applicant
who has a poor management record to a public hearing as part of its
process for determining whether the applicant has a satisfactory record
of performance. The author of the comment stated that legitimate users
of the land do not need to have someone who is known to ignore good
range management standards abusing the land or BLM's staff, and added a
request for open hearings so that the public interest could be heard.
BLM will determine whether applicants for renewal or issuance of
new permits and leases and any affiliates have a satisfactory record of
performance. BLM agrees that a poor operator who abuses public land is
detrimental to sound land management. BLM will not approve such renewal
or issuance unless the applicant and all affiliates have a satisfactory
record of performance, as provided in section 4130.1-1(b). BLM does not
believe that any useful purpose would be served by including a public
hearing as part of the process of determining whether an applicant for
a permit or lease has a satisfactory record of performance. If rejected
applicants appeal BLM's decision to deny them a permit or lease based
on an unsatisfactory record of performance, they would have the right
to a hearing of their appeal before an Administrative Law Judge under
43 CFR part 4, which would be open to the public.
Several comments urged BLM to remove section 4130.1-1(b)(2)(ii),
stating that cancellation of a state grazing permit should not be
grounds for determining that a permittee or applicant has an
unsatisfactory record of performance. The comments stated that some
state rules go beyond practices directly related to livestock grazing.
Another comment stated that the provision exceeds BLM's authority under
Section 302(c) of FLPMA (43 U.S.C. 1732(c)).
The provision in question provides standards for determining that
an applicant has a satisfactory record of performance. BLM will find a
record of performance satisfactory if the applicant has not had a state
permit or lease of lands within the allotment for which the applicant
seeks a Federal authorization, canceled for violation of its terms or
conditions within the preceding 36 months. Note that the threshold in
the regulations is cancellation, in whole or in part, for violation of
the state permit or lease rather than for other reasons under state
law, such as cancellation because the state declines to issue permits
for the particular time or land or the state has disposed of the land.
Section 302(c) states that any ``instrument'' authorizing the use of
public lands shall include a provision authorizing BLM to revoke or
suspend the instrument upon a final administrative finding of a
violation of any term or condition of such instrument. Section 302(c)
does not limit the scope of what BLM may require of an applicant.
One comment requested BLM to clarify whether a person has a
satisfactory record of performance if he is damaging the public lands,
but has not had a Federal permit or lease canceled, has not had a state
permit or lease canceled on the pertinent allotment, and has not been
barred from holding a Federal permit or lease by a court of competent
jurisdiction. On the other hand, another comment stated that requiring
a permittee to apply for renewal will increase the importance of the
performance review in the renewal process, but could lead to using the
performance review as an excuse not to renew a permit.
BLM will consider the question whether a person is damaging the
public lands in determining whether he is in substantial compliance
with the terms and conditions of his permit or lease and with the
regulations applicable to the permit or lease. Whether or not there has
been a cancellation, BLM may find a permittee not in substantial
compliance with permit or lease terms and conditions or with the
regulations, and consider this finding in determining whether to renew
the permit or lease. BLM will also consider whether the lack of
substantial compliance was due to circumstances beyond the control of
the permittee or lessee.
One comment suggested that section 4130.1-1(b)(2) also provide that
a party would not be considered to have a satisfactory record of
performance if he--
(1) Obstructs public access to public lands;
(2) Grazes livestock after the end of the grazing period;
(3) Removes water sources used by wildlife; or
(4) Poaches or kills wildlife.
A permittee or lessee who does things like those listed in the
comment may be found not in substantial compliance with the terms and
conditions of the permit or lease, and thus not to have a satisfactory
record of performance.
One comment stated that BLM should change its qualifications to
receive a grazing permit so that applicants with a criminal background
are barred from getting a permit.
We have considered the comment and decided that it would be
impractical for BLM to bar applicants with a criminal background from
getting a grazing permit, unless the criminal conviction was directly
related to the loss of a Federal or state grazing permits or leases due
to violations, or the applicant was barred from holding a Federal
grazing permit or lease by a court of competent jurisdiction as
provided in the final rule in section 4130.1-1 et seq. Furthermore, it
is not Federal or BLM policy to prevent a person who has been convicted
of a crime, served his sentence, and been rehabilitated, from obtaining
gainful employment.
One comment stated that BLM should consider increasing the
``statute of limitations'' on conditions for having a satisfactory
record of performance in section 4130.1-1(b)(2) to more than 3 years.
The 36-month period has been in the regulations since the
requirement to have a satisfactory record of performance was added in
the 1995 rule. We have no evidence that this threshold is not working,
and have not changed it in this final rule.
In the proposed rule we invited comments on whether we should
require an application for renewal of a grazing permit or lease (68 FR
68456). Several comments addressed this issue.
Several comments urged BLM to change section 4130.1-1(a) to provide
that only new applicants for grazing permits or leases need to submit a
formal application, so that it is clear that the holder of an expiring
10-year term permit or lease does not have to submit a formal
application for renewal of that permit or lease. These comments stated
that Section 402(c) of FLPMA provides that, so long as the lands under
the permit or lease remain available for livestock grazing, the holder
of the expiring permit has complied with applicable regulations and
accepts the terms and conditions of the new permit or lease, the holder
of the expiring permit must be given first priority for receipt of the
new permit or lease. They offered several policy reasons for not
requiring preference holders to reapply for permits every ten years,
stating that requiring such applications would allow the agency too
much discretion; be used by environmental groups as tools to
[[Page 39469]]
force review of environmental conditions on allotments; consume agency
resources; burden permittees and lessees; increase the importance of
performance reviews and perhaps lead to using the performance review as
an excuse to deny a new permit; have allowed or will allow agency
personnel to use the lease renewal process to extract inappropriate
concessions from, or impose inappropriate requirements, on permittees
and lessees on environmental and other issues. They stated that FLPMA
allows a preference holder the right to renew. One contended that, if
grazing allotments are designated in the land use plan, they should not
be considered discretionary activities requiring periodic review before
renewal.
One comment, however, felt that permittees and lessees should
submit an application for renewal when their permits or leases expire.
It stated that the renewal application should be thoroughly reviewed by
BLM before a decision is made to renew.
The first group of comments is correct in that BLM must give the
holder of an expiring permit or lease priority for receipt of a new
permit or lease, so long as the conditions of Section 402(c) of FLPMA
are met. However, there is administrative utility in requiring
application for the renewal of an expiring permit or lease. Therefore,
we have not adopted this suggestion in the final rule. The regulatory
text does not explicitly require an application, but by referring to
``the applicant'' it implies the requirement. Submitting a permit or
lease renewal application by the holders of an expiring permit or lease
documents their interest in their continued use of the permit or lease
and that they are aware that their permit or lease will be expiring and
must be renewed. Submitting an application for renewal also allows an
opportunity for the holders of the expiring permit or lease to apply
for changes in its terms and conditions that they may desire, and
provides them certainty under the APA (5 U.S.C. 558 (c)(2)) as to
continued use of their permit or lease in the event that its renewal is
delayed due to BLM's inability to process the application in a timely
manner. The application will also be a useful element of the
administrative record.
A comment stated that BLM should not renew grazing permits when
they expire. Ranchers should not be allowed to graze cattle for
personal gain on public land.
The TGA, FLPMA, and other laws authorize grazing on public land for
private business purposes.
Section 4130.1-2 Conflicting Applications
In the proposed rule we made no changes in this section, which
provides for how we resolve the situation when more than one qualified
applicant seeks a permit or lease for grazing use of the same public
lands or where additional forage or acreage becomes available. However,
questions raised in comments indicated a degree of confusion as to the
meaning of one paragraph of this section, and suggested that we should
change the wording for purposes of clarification.
Section 4130.1-2(d) provides that when BLM must decide among
conflicting applicants who is to receive grazing use, it may consider,
along with the several other factors listed in this section, ``[p]ublic
ingress or egress across privately owned or controlled land to public
lands.'' Several comments stated that BLM should remove paragraph (d)
because ``[p]ublic access across private lands should be given
voluntarily and never become a condition for consideration by BLM under
any part of these regulations.''
This provision first appeared in the regulations (Grazing
Administration--Outside Grazing Districts and Exclusive of Alaska) in
1968, in the following form:
4121.2-1(d)(2) The Authorized Officer will allocate the use of
the public land on the basis of any or all of the following factors:
(i) Historical use, (ii) proper range management and use of water
for livestock, (iii) proper use of the preference lands, (iv)
general needs of the applicants, (v) topography, (vi) public ingress
and egress across preference lands to public lands under application
(where access is not presently available), and (vii) other land use
requirements.
Paragraph (d)(2)(vi) included a footnote that stated, ``Where the
United States obtains such a right-of-way, it will assume
responsibility therefore to the full extent authorized by law.'' The
major rewrite of the regulations in the mid-1970s combined the
regulations for inside and outside grazing districts. The provision in
the current regulations is a ``carry over'' from the Section 15 grazing
lands regulations. The regulation in its original form does in fact
direct that, all other factors being equal, if there were several
applicants for use of a specific tract of public land, and one
applicant offered public access across their base property to the
public lands and the others did not, we would choose the applicant that
did, and obtain and manage a right-of-way across their lands. BLM
obtains public ingress and egress across the successful applicant's
base property and the successful applicant receives a grazing permit or
lease, so that both parties benefit.
We may consider changing this provision in a future rulemaking exercise.
Other comments suggested that we amend the introductory text of
section 4130.1-2 to provide that applicants with preference have
priority for receipt of increased available forage, rather than that
preference is treated co-equally with the other factors listed in
paragraphs (a) through (h) of the section.
Priority for preference holders in apportioning additional forage
is already required by section 4110.3-1. It is unnecessary to restate
this priority in this section. This section, however, directs BLM to
consider the other factors in addition to preference, to resolve
conflicts among applicants with preference.
Section 4130.2 Grazing Permits and Leases
In the proposed rule, we revised paragraph (a) in this section to
make it clear that the grazing permit or lease, as distinguished from
other documents such as a grazing fee billing, is the document BLM uses
to authorize grazing use for those who hold grazing preference on BLM-
managed lands. BLM also uses ``other grazing authorizations'' such as
free use permits, exchange-of-use permits, and crossing permits to
authorize grazing for preference and non-preference holders in limited
circumstances. These are addressed in sections 4130.5 and 4130.6.
We removed the phrase ``types and levels of use authorized'' from
paragraph (a) and replaced it with the term ``grazing preference''
because the level of use, the forage amount expressed in AUMs, and the
``type'' of use, whether active or suspended, are embodied in the term
``grazing preference.'' We removed the term ``conservation use'' from
this paragraph for reasons stated in the discussion of section 4100.0-5.
We also removed the requirement in paragraph (b) that BLM consult,
cooperate, and coordinate with the interested public prior to the
issuance or renewal of grazing permits and leases. Comments and
responses to this change can be found in the discussion of section
4100.0-5 as well as below.
We added a provision to paragraph (f) that requires BLM and the
permittee or lessee to sign the permit or lease in order to validate it.
We revised the provisions in paragraphs (g) and (h) on temporary
nonuse and moved them to section 4130.4, which contains provisions for
[[Page 39470]]
authorization of temporary changes in grazing use in order to clarify
the regulations. We removed all references to conservation use. Other
changes to provisions on temporary nonuse are described in the
discussion of that section.
Some comments stated that the amendment of this section for the
purpose of clarifying that the grazing permit or lease is the document
that BLM uses to authorize grazing creates an unnecessary burden on BLM
to prepare NEPA analysis before issuing a permit or lease. The comment
stated that grazing use on public lands is authorized by the land use
plan coupled with grazing preference, and that therefore NEPA analysis
is not necessary when issuing a permit or lease.
The Taylor Grazing Act directs BLM to authorize livestock grazing
through a permit or lease. NEPA requires site-specific analysis of
impacts before an agency can authorize activities on public land. Most
land use plans do not meet site-specific NEPA analysis requirements for
issuing permits or leases on individual allotments.
A comment suggested that BLM should not state that the grazing
permit or lease is the only document that authorizes grazing use
because each year BLM may approve applications for grazing use under
terms and conditions that do not exactly match the terms and conditions
listed on the grazing permit or lease. Therefore, the comment went on,
BLM should also consider the approval of such an application as a
grazing authorization. BLM also should require proof of payment of
grazing fees before allowing grazing.
The TGA directs BLM to authorize livestock grazing through a permit
or lease. FLPMA provides that a grazing permit or lease will have a 10-
year term with certain exceptions. BLM evaluates permits and leases
before it issues them pursuant to its obligations under NEPA and its
land use planning regulations. One outcome of this process is permit or
lease terms and conditions of grazing use that are compatible with
achieving multiple-use management objectives specified in BLM land use
plans. The grazing regulations require that terms and conditions of
permits and leases include, as a minimum: The allotment(s) to be
grazed, the number of livestock, the period of use, and the amount of
forage to be removed. Since forage growth and livestock operation needs
can change slightly from year to year, BLM allows or requires adaptive
minor adjustments in the number of livestock, use period, and amount of
forage, so long as the adjustments are within the terms and conditions
of the permit or lease and accord with applicable land use plans. These
adjustments are documented by BLM case records, decisions, and grazing
fee billings/payment records. Such adjustments become a part of the
term grazing permit or lease for the period the adjustments are in
effect. However, the term permit or lease is the document that
authorizes the grazing use, not the application and paid grazing fee bill.
Another comment suggested that grazing permit changes that do not
affect the environment or change the terms and conditions of a permit,
but only involve paper changes such as a transfer, should not be
subject to NEPA, or at most should only involve a categorical exclusion.
Addressing whether the issuance of a permit or lease that is a
result of a preference transfer and that is substantially unchanged
from the immediately preceding permit or lease should be subject to
NEPA is not within the scope of this rulemaking. In a separate effort
to streamline permitting processes, BLM is reviewing its current list
of actions that are categorically excluded and examining whether a
permit or lease that meets specific criteria also should be
categorically excluded.
Some comments suggested that a requirement for consultation,
cooperation, and coordination with permittees or lessees should be
reiterated at section 4130.2(f) in order to emphasize the importance of
consultation regarding permit or lease terms and conditions.
While we recognize the importance of coordinating with permittees
and lessees when developing terms and conditions, there is no need to
restate this requirement because it is redundant. The requirement for
consultation, cooperation, and coordination with affected permittees or
lessees before issuing or renewing grazing permits and leases is
already provided for at section 4130.2(b).
Numerous comments expressed displeasure with any reduction in the
role of the interested public, and many cited the issuance or renewal
of permits and leases as specific instances where the rule should not
be changed. These comments stated that the issuance of a grazing permit
or lease was a significant decision worthy of extensive public
involvement. Comments also argued that reliance on NEPA's public
participation opportunities was not sufficient, due to the backlog of
grazing permit environmental assessments and the recent history of
special legislation authorizing renewals without traditional NEPA
compliance. Other comments supporting the rule described the grazing
permit or lease as the decision that has suffered the most inefficiency
because of the interested public consultation requirements. Some argued
that grazing permits and leases should be processed in a timely manner
and only BLM and permittees and lessees should be directly involved in
this process.
BLM issues or renews an average of nearly 2,000 permits and leases
each year, and, thus, we view these as day-to-day grazing management
decisions. Permits and leases implement decisions made in land use
plans, allotment management plans and other grazing activity plans--
decisions made with significant public input. Many of the comments
requesting continued interested public consultation actually raised
broad allocation issues (i.e., whether grazing should occur at all)
that would properly be addressed in a land use plan rather than at the
permit issuance stage. There currently is a backlog of grazing permits
requiring final NEPA compliance. BLM is working hard to eliminate this
backlog as soon as possible. Under current funding levels, BLM is
scheduled to complete full NEPA processing of all permits and leases by
2009. Although timely NEPA participation may be temporarily delayed for
some permits, the interested public will ultimately have the
opportunity to participate in the NEPA process. If BLM contemplates any
changes in levels of grazing use or in permit or lease terms and
conditions, we will provide the interested public an opportunity to
review and provide input during the preparation of any evaluation or
other reports that the authorized officer may use as a basis for such
changes. Such reports may include monitoring reports, evaluations of
standards and guidelines, BAs or BEs, and any other formal evaluation
reports that are used in the decisionmaking process. Also, the
interested public will be notified of proposed decisions and retains
the option to protest before a decision is final. This level of
participation should achieve a balance that utilizes public input while
allowing for timely processing of permits and leases. No changes have
been made in the final rule.
One comment stated that BLM should not grant priority for renewal
of permits and leases to permittees and lessees who hold expiring
permits and leases unless they, in addition to meeting the other
criteria found at section 4130.2(e), have a satisfactory record of
performance. This would make section
[[Page 39471]]
4130.2(e) consistent with the proposed rule at section 4130.1-1(b) and
(b)(1).
The existing regulations in section 4130.2(e)(2) require, under
Section 402(c)(3) of FLPMA (43 U.S.C. 1752(c)(3)), that the permittee
or lessee be in compliance with the rules and regulations and the terms
and conditions in the permit or lease to have first priority for a new
permit or lease. This provision is very similar to language at section
4130.1-1(b)(1)(i) that addresses satisfactory performance. We
determined that the language in this final rule is adequate.
Another comment suggested that BLM should remove the requirement
that acceptance of terms and conditions of a new permit or lease is
required of holders of expiring permits and leases in order for them to
receive priority for receipt of the permit or lease. It stated that
this requirement is redundant to the statement that ``a permit or lease
is not valid unless both BLM and the permittee or lessee have signed
it,'' and that it is also an inappropriate condition upon which to base
priority for renewal of a permit or lease.
We have determined that retention of section 4130.2(e)(3) reflects
criteria established in Section 402(c)(3) of FLPMA regarding priority
to receive new permits and leases.
Section 4130.3 Terms and Conditions
We added a new paragraph (b) to this section in the proposed rule
specifying that when BLM offers a permit or lease, the terms and
conditions may be protested and appealed unless the terms and
conditions are not subject to OHA appeals, or the terms and conditions
pertain to a permit or lease for grazing use of additional acreage
under section 4110.4-1. We gave an example of terms and conditions that
would be exempt from administrative appeal to OHA, namely those
mandated by a biological opinion (BO) issued under the ESA. We also
added paragraph (c) providing that if terms and conditions are stayed,
BLM could authorize grazing use in accordance with section 4160.4. By
adding this language, we sought to clarify that we are providing the
opportunity to protest and appeal decisions that specify the terms and
conditions of the permit or lease we are offering. In this final rule,
we have removed the example of terms and conditions that are exempt
from appeal presented at section 4130.3(b)(1). The proposed example was
based on a policy articulated in two Secretarial memoranda, and those
memoranda address the issue adequately.
Some comments objected to the exemption from appeal for those terms
and conditions resulting from a biological opinion. In cases where a
biological opinion (BO) is the basis for additional terms and
conditions in a grazing permit or lease, they stated that the affected
permittee or lessee should be able to appeal those additional terms or
conditions that are based on the biological opinion. They asserted that
in those cases, as may be necessary for a full and true disclosure of
the facts, where the BLM authorized officer's decision rests, in whole
or in part, on a material fact not appearing in the agency's record,
such as the material constituting a BE, BA, or biological opinion, the
affected permittee should be entitled to an opportunity to rebut such fact.
Currently, terms and conditions required in a BO, as well as
implementation of a reasonable and prudent alternative if required in
the BO, are the only terms and conditions not subject to OHA review.
This exclusion from OHA review is based on Secretarial memoranda dated
January 8, 1993, signed by Secretary Lujan, and April 20, 1993, signed
by Secretary Babbitt. It has thus been the policy of the Department of
the Interior that the Office of Hearing and Appeals (OHA) does not have
the authority to review BOs issued under Section 7 of the ESA. Under
these Secretarial memoranda, if BLM decides to implement a reasonable
and prudent alternative set forth in a FWS BO, or if BLM implements the
mandatory terms and conditions of a BO, OHA is not entitled to ``second
guess'' the FWS findings in the guise of reviewing the BLM decision.
Any review of FWS BOs is limited to the Federal courts pursuant to the
review mechanism created by Congress in Section 11(g) of ESA (16 U.S.C.
1540(g)). This issue is further addressed in the preamble discussion of
section 4160.1. We dropped this provision because BLM believes the
Secretarial memoranda signed by Secretaries Lujan and Babbitt provide
sufficient clarity regarding the inability of OHA to review the merits
of FWS biological advice. This example has been removed from the final
rule.
Some comments stated that BLM should remove the requirement that
``grazing permits and leases shall contain terms and conditions * * *
to ensure conformance to the provisions of subpart 4180'' at section
4130.3(a) and section 4130.3-1(c). Subpart 4180 describes Fundamentals
of Rangeland Health and Standards and Guidelines for Grazing
Administration. The comments reasoned that this change would clarify
that permits and leases must be in conformance to all of the provisions
of part 4100 and the management objectives established by applicable
land use plans. They felt that these provisions were redundant because
standards and guidelines developed under subpart 4180 are made a part
of land use plans and there is an existing requirement that livestock
grazing activities conform to land use plans.
It is true that terms and conditions included in permits and leases
implement all the provisions of part 4100 pertinent to the permit or
lease. The provision on conformance to subpart 4180 does not mean that
the terms and conditions must only conform to the fundamentals of
rangeland health, standards, and guidelines found in subpart 4180. They
must also conform to the appropriate land use plans. The reference to
subpart 4180 appears in this newly designated paragraph (a) (which was
the entire section 4130.3 in the 1995 regulations) as a matter of
emphasis. Management objectives from applicable land use plans also
establish desirable outcomes that BLM strives to achieve. Terms and
conditions of permits and leases should conform to and not hinder
progress towards management objectives, fundamentals, and standards.
BLM has considered these comments and has determined that, despite the
redundancy pointed out by the comment, it would be best to continue to
state plainly in the regulations that permits and leases must
incorporate terms and conditions that ensure conformance to subpart 4180.
Some comments stated that BLM should remove the proposed language
at section 4130.3(b)(2) which would not allow protest or appeal of
terms and conditions placed on grazing use on additional land acreage
outside designated allotments. The comment stated that this would
violate TGA Section 9 hearing rights relative to grazing use upon
``additional land acreage'' within a Grazing District, and that there
is no rational basis to treat appeal rights for permits issued for
additional land acreage different from appeal rights for permits issued
as a result of preference transfer or permit renewal.
In response to this comment we have removed the provision at
section 4130.3(b)(2) from the final rule.
Comments suggested that BLM insert a standard term and condition
into all grazing permits that states unequivocally that nothing in the
terms and conditions of the permit shall be construed as affecting
valid existing rights of way, easements, water rights,
[[Page 39472]]
land use rights, vested rights, or any other property rights of any kind.
The comment expresses concern that the issuance of a grazing permit
or lease and the BLM management of the public lands associated with the
permit or lease may affect valid existing rights, including, among
other things, ``property rights of any kind.'' The TGA provides that
the Secretary ``shall make such rules and regulations * * * enter into
such cooperative agreements, and do any and all things necessary to
accomplish the purposes of'' the TGA ``and to insure the objects of
such grazing districts, namely, to regulate their occupancy and use,
preserve the land and its resources from destruction or unnecessary
injury, to provide for the orderly use, improvement, and development of
the range.'' BLM accomplishes these goals through grazing permits and
leases, which authorize grazing use on the public lands. Typically, the
terms and conditions of a permit or lease specify such things as
seasons of use and numbers of livestock. If we were to adopt the
comment and add a term and condition in grazing permits that would
prohibit BLM from doing anything that would affect any valid existing
rights or any other property rights of any kind, it would impose an
unlawful limit on the Secretary's broad authority to regulate the use
of the public rangelands. Because of the potential confusion the
suggestion in the comment would create, because property rights are
adequately protected by the U.S. Constitution, and because there are
established avenues for seeking compensation for ``takings,'' we have
not adopted the comment in the final rule.
One comment suggested that BLM include a statement in section
4130.3 that terms and conditions will include compliance with
management goals and objectives.
Authority to include terms and conditions in a grazing permit or
lease to assist in achieving management goals and objectives is
sufficiently addressed in section 4130.3-2.
Another comment stated that the regulations should provide that the
new permit or lease that BLM offers to the holder of an expiring permit
or lease should reflect changes in terms and conditions that apply at
the time of renewal, or reflect the terms and conditions of the expiring
permit or lease until the terms and conditions are officially changed.
When renewing a permit or lease, BLM must retain the discretion to
authorize grazing use under terms and conditions that it determines to
be appropriate, even if those terms and conditions are different from
the permit or lease that recently expired. The final regulations also
provide in section 4160.4 that, should OHA stay any term or condition
included in a BLM decision that renews a permit or lease, BLM will
continue to authorize grazing under the permit or lease, or the
relevant term or condition thereof, that was in effect immediately
before the decision was issued, subject to any relevant provisions of
the stay order.
Section 4130.3-2 Other Terms and Conditions
In the proposed rule, BLM proposed to remove paragraph (h) from
this section. Paragraph (h) authorizes BLM to include in a grazing
permit or lease a statement disclosing the requirement that a permittee
or lessee provide reasonable administrative access to BLM across non-
federal lands owned or controlled by the permittee or lessee, for the
orderly management and protection of the Federal lands under BLM
management. BLM reasoned that the absence of such disclosure under the
proposed rule would not affect the underlying principle that reasonable
administrative access is an implied condition of grazing permits.
In response to public comments, as explained below, we have
restored paragraph (h) in this final rule. Paragraph (h) provides that
optional terms and conditions include a ``statement disclosing the
requirement that permittees or lessees shall provide reasonable
administrative access across private and leased lands to the Bureau of
Land Management for the orderly management and protection of public lands.''
Several comments stated that the regulations should retain the
provision in section 4130.3-2(h) regarding administrative access across
private lands in order for agency staff to perform resource management
activities on public lands efficiently. Comments expressed concern that
removal of this provision might impede the agency's management of
public lands, and pointed out that such access is an implied condition
of a grazing permit. Other comments supported the removal of this
provision, asserting that the agency should only have access across
private property by permission of the land owner or to respond to an
emergency. Some comments thought this provision should be retained
because its removal would limit public access to public lands,
misinterpreting the intent of this provision. This provision does not
apply to public access across private land; it only applies to agency
administrative access to perform necessary resource management
activities on the public lands.
In response to comments, the final rule retains the language at
section 4130.3-2(h) that we considered removing in the proposed rule.
Administrative access is an important component of BLM's ability to
manage the lands for which it is responsible, including, but not
limited to, Federal grazing lands. The provisions of paragraph (h)
regarding administrative access refer to reasonable access across a
permittee's or lessee's owned or controlled lands to reach Federal
lands so that BLM, including BLM staff and third party contractors
working for BLM, may perform necessary resource management activities
on those lands. These include such activities as range use supervision,
compliance checks, trespass abatement, monitoring of resource
conditions, and evaluating the conditions of or the need for range or
other improvements. Land management agencies, like any landowner, need
appropriate access to the lands they manage. Efficient and reasonable
access to, for example, grazing allotments, is necessary and is
consistent with the partnership between grazing permittees or lessees
and the agency to manage rangelands properly. Retaining paragraph (h)
is the most effective and efficient means of informing the public,
including interested parties, of the requirement that a permittee or
lessee provide reasonable administrative access across lands owned or
controlled by them to BLM for the orderly management and protection of
the Federal lands under BLM management.
One comment stated that BLM should discourage the use of
supplemental feed on public land because such feed can introduce weeds
and pollute water with excess nutrients.
Supplemental feed, as referred to in section 4130.3-2(c), means a
feed that supplements the forage available from the public lands and
that the operator provides to improve livestock nutrition or rangeland
management. BLM grazing regulations allow placement of supplemental
feed, including salt, for improved livestock and rangeland management,
but prohibit placement of supplemental feeds on public lands without
authorization, or contrary to the terms of the permit or lease. When
BLM authorizes the use of supplemental feed it includes all necessary
restrictions, including any requirements for avoiding the introduction
or spread of noxious weeds, and directions for placement to ensure that
its use does not contribute to resource degradation. We have not
[[Page 39473]]
amended the regulations in response to this comment.
Some comments suggested that BLM should include in section 4130.3-
2(f) a requirement that the Bureau must develop a ``findings'' document
containing the relevant facts, based on documented resource data,
supporting decisions BLM issues to change current terms and conditions
of grazing permits or leases for any of the reasons stated in paragraph
(f). They stated that such a ``findings'' document also should accompany
any grazing decision placed in full force and effect by the Bureau.
Section 4130.3-2(f) provides that BLM may temporarily delay,
discontinue, or modify grazing use as scheduled by the permit or lease
to allow for plant recovery, improvement of riparian areas, protection
of rangeland resources or values, or to prevent compaction of wet
soils, such as when delay of spring turnout is required because of
weather conditions or lack of plant growth. This provision allows for
timely implementation of temporary changes to grazing use that are
needed to respond to on-the-ground conditions that cannot be reliably
predicted when the permit or lease is issued. Similarly, BLM makes
grazing decisions effective immediately (``full force and effect'')
only when needed to respond to temporary and unpredictable conditions
such as lack of forage due to wildfire, drought, or insect infestation,
or to close grazing areas to abate unauthorized grazing use.
In most cases, the resource conditions that trigger a temporary
change in terms and conditions should be evident to both the permittee
or lessee and BLM. In the event that they are not and the permittee or
lessee does not voluntarily agree to such temporary changes, BLM would
need to issue a grazing decision to require the temporary changes. Such
a grazing decision would include a rationale for the temporary changes
and be subject to appeal and petition for stay.
Because the need for changes cannot be reliably predicted and can
arise suddenly, BLM will not adopt the suggestion that a ``findings''
document be required before making temporary changes or before making
changes by grazing decision effective immediately. Such a requirement
could result in unnecessary delay of actions that are needed to
conserve and protect resources.
Some comments stated that BLM should modify the regulation at
section 4130.3-2(g) by removing the phrase ``within the allotment''
with respect to lands allowed for exchange of use, so that a permittee
or lessee who owns land within another permittee's or lessee's
allotment may be credited on his grazing fee bill for the forage that
their lands are providing to the other permittee.
We have not adopted this suggestion in the final rule. An exchange
of use agreement is not the appropriate instrument to document the
arrangement described by the comment. The arrangement described by the
comment is where BLM acts as an intermediary between two permittees/
lessees by: (1) Collecting grazing fees from the first party for their
grazing use of the second party's private lands that are located in the
first party's grazing allotment; and (2) then crediting the grazing fee
billing of the second party (for grazing use in a different allotment)
in the amount collected from the first party. BLM suggests that a more
appropriate approach to this situation would be: (1) The first
permittee lease for grazing purposes land owned by the second permittee
that is located in the first permittee's allotment; and, (2) the first
permittee then provide BLM a copy of the lease to show evidence of
control sufficient for BLM to enter into an exchange of use agreement
with them. BLM recognizes that where the second permittee does not
fence his land and state or local law provides that lands must be
fenced before a landowner can gather stray livestock from their land,
there is no incentive, other than good will, for the first permittee to
lease the second permittee's land because he can graze the second
permittee's land for free (although they cannot stock to the capacity
of the public and private lands considered together because they cannot
demonstrate control of the private land). Therefore, at the local
office level, BLM may be willing to provide the intermediary billing
services described above through the terms of a cooperative agreement
or service contract with all involved parties.
The purpose of an exchange of use agreement is to allow a permittee
who owns or controls land that is intermingled with and unfenced from
public land within his allotment to stock to the capacity of the public
and private lands considered together and be charged grazing fees only
for the forage that occurs on the public lands. Removing the phrase
``within the allotment'' from this paragraph would allow permittees to
offer lands in exchange of use that are not within the allotment for
which they have a permit. Although removing this phrase could
facilitate BLM performing the intermediary billing service described
above in some circumstances, generally allowing lands outside
allotments to be offered in exchange of use could create an expectation
that the permittee would be allowed to stock his permitted allotment to
the extent of the forage produced on the land outside his allotment
offered in exchange of use, plus the forage that occurs on lands within
his allotment. This expectation could not be met by BLM because the
resulting stocking level would not comply with the requirement at
section 4130.3-1(a) that livestock grazing use authorized by a grazing
permit or lease not exceed the livestock carrying capacity of the allotment.
One comment suggested that BLM should require other users of the
public lands to get permission to be on public land from BLM and BLM
should inform the permittee when other users and/or BLM staff will be
out on the permittee's allotment.
Determining whether and under what circumstances users other than
livestock permittees need approval to use public lands is outside the
scope of this rulemaking. Whenever feasible, BLM will inform the
livestock operators in advance about BLM field operations that affect
grazing management of allotments where they have permits or leases in
the spirit of consultation, cooperation, and coordination. A regulation
requiring advance notification, however, would be impractical to
implement and detract from efficient management of the public lands. We
have not adopted this suggestion in the final rule.
Section 4130.3-3 Modification of Permits or Leases
In the proposed rule, we amended this section in order to clarify
that BLM may modify terms and conditions of a permit or lease if we
determine that either the active use or related management practice is
no longer meeting the management objectives specified in the land use
plan, an allotment management plan, an applicable activity plan, or any
applicable decision issued under section 4160.3. We may also modify
permit or lease terms and conditions that do not conform to the
provisions of subpart 4180.
Also, we removed the regulatory requirement that we consult with
the interested public on any decisions to modify terms and conditions
on a permit or lease. The interested public retains, to the extent
practical, the opportunity to review and provide input on reports
supporting BLM's decisions to increase or decrease grazing use. The
interested public, permittees and lessees, and the state should all
have opportunity to review and submit input to BAs and BEs when they
are used to
[[Page 39474]]
supplement grazing management evaluations. However, since they are
among the body of documents that qualify as ``reports,'' there is no
need to highlight them in the regulations. Therefore, the specific
reference to BAs or BEs at section 4130.3-3(b) has been removed from
the final rule.
Some comments suggested that BLM not use the need to conform to the
provisions of subpart 4180 as justification for modifying terms and
conditions of a permit or lease. The comment stated that standards
developed under subpart 4180 are subjective, and there are no
requirements to collect data to support a determination of achievement
or failure to meet those standards.
We have not adopted this comment in the final rule. BLM developed
rangeland health standards and guidelines for livestock grazing
administration in consultation with RACs in most states and regions.
The fundamentals of rangeland health and standards and guidelines
recognize rangeland ecological complexity and multiple values, and are
among the many tools BLM uses to ensure sustainable multiple use of
public lands. Evaluation of rangeland conditions is carried out using
all available monitoring, inventory, and assessment data. Permit
modifications are based on range health assessments and evaluations,
completed by an interdisciplinary team, using all available monitoring
data and all available resource information. This final rule further
emphasizes the importance of using monitoring data by adding, at
section 4180.2(c), a requirement for its use to identify what the
significant contributing factors are, once a standards assessment has
indicated that the rangeland is failing to meet standards or that
management practices do not conform to the guidelines. The final rule
retains the provision on conformance to subpart 4180.
Another comment suggested adding requirements to collect monitoring
data that shows that current grazing use or management is the cause of
not meeting management objectives. A similar comment suggested adding
requirements to document facts and findings, supported by resource
data, as a justification for changing terms or conditions. Finally,
another comment stated that BLM should make it clear in subparts 4110
and 4130 that any changes in grazing preference and/or changes in other
grazing permit terms and conditions must be supported by monitoring
done by BLM-approved Manual procedures.
Permit and lease modifications are based on land health assessments
and evaluations, completed by an interdisciplinary team, using all
available monitoring data and all available resource information. BLM
documents facts and findings during the evaluation process by preparing
an evaluation report and NEPA documents that reference all data and
information used as a basis for recommending changes in terms and
conditions. This final rule further emphasizes the importance of using
monitoring data by adding a requirement at subpart 4180.2(c) that it be
used to identify significant contributing factors for failure to meet
standards, once a standards assessment has indicated that the rangeland
is in fact failing to meet the standards or that management practices
do not conform to the guidelines. BLM needs flexibility to use site-
specific methods in addition to those monitoring methods set forth in
Manual guidance. This flexibility will allow BLM to use techniques that
meet local needs and that we may develop in cooperation with other
agencies and partners.
Another comment suggested that we consider adding a provision at
section 4130.3-2 stating that ``this regulation does not obviate the
need to obtain other federal, state or local authorizations required by
law.'' The comment pointed out that the construction of range
improvements associated with grazing activities, such as water improvements
and storage structures, is often governed by other laws or regulations.
Section 4120.3 governs the installation, construction, and
maintenance of range improvements. Permittees or lessees must enter
into a cooperative range improvement agreement with BLM before building
water improvements or storage structures. Through the cooperative
agreement, BLM retains control over standards, design, construction and
maintenance criteria. The provision suggested by the comment is
unnecessary because BLM has a responsibility to ensure compliance with
applicable law. Nothing in the regulations prevents BLM from adding
such a term where it is warranted. BLM still must comply with NEPA, the
Clean Water Act, and state water rights laws. Since BLM maintains
control over range improvement planning, implementation and
maintenance, existing regulations and policies ensure compliance with
applicable Federal, state, and local law and regulations.
Under the final rule, consultation, cooperation, and coordination
with the interested public is no longer required before a term or
condition in a grazing permit or lease is modified due to active use or
related management practices not meeting relevant plans or decisions.
This change is intended to improve the administrative efficiency of
grazing management operations.
Many comments expressed opposition to any reduction in the role of
the interested public, and many cited the modification of permits as a
general concern. Many felt it was important to have non-grazing
interests involved in both planning and implementation-level decisions.
Numerous other comments supported a general reduction in mandatory
consultation with the interested public, seeing these as activities
that would benefit from faster and more efficient action.
Permit and lease modifications are routine management activities.
BLM modifies permits and leases to maintain consistency with broader
planning decisions such as land use plans and allotment management
plans. These planning-level decisions are made with extensive
involvement of the interested public and public participation
opportunities through environmental analysis under NEPA. Modifications
may also be made as a result of monitoring studies, evaluations of
rangeland health standards and guidelines for grazing administration or
BAs or BEs prepared as part of the Section 7 consultation requirements
under the ESA. In these cases, BLM provides the interested public, to
the extent practical, an opportunity to review and provide input on
these reports and evaluations during their preparation, in accordance
with section 4130.3-3(b). Most modification decisions themselves
require site specific NEPA analysis leading to public notice and
potential public participation. Additionally, the interested public
will be specially notified of a proposed decision and can protest if so
desired.
In BLM's view, informal consultations and the ability to review the
NEPA document and protest a proposed decision provide adequate
mechanisms for identifying legitimate public concerns over permit
modifications. The final rule maintains the opportunity, to the extent
practicable, for the interested public to review and provide input on
reports that evaluate monitoring or other data. BLM appreciates that
the interested public can potentially provide important insights on
reports that will be used to shape implementation decisions. Because
this is information that postdates planning decisions, yet will
influence future daily
[[Page 39475]]
implementation decisions, it is appropriate for the interested public
to participate in reviewing this data.
The proposed rule specifically referred to the preparation of BAs
or BEs prepared pursuant to the ESA as being open for review. Several
comments requested that these reports be removed from the rule because
of their technical nature.
A change has been made in the final rule to remove the specific
listing of these example reports. While the range of reports subject to
this review procedure would include, in most circumstances, BAs or BEs,
it is not BLM's intention nor is it appropriate to create an exhaustive
list of reports subject to review in the regulations. Listing these
particular reports could have unduly narrowed the perceived range of
what should be made available for review and input.
One comment stated that BLM should clarify that it maintains sole
responsibility and authority to ensure the accuracy of the biological
assessment and the conclusions therein, and to ensure that listed
species are not likely to be jeopardized, regardless of economic
considerations.
There is adequate direction provided in the ESA and in the FWS and
National Marine Fisheries Service regulations on these requirements.
BLM will continue to use the procedures specified in BLM Manual section
6840 to carry out our responsibilities under the ESA and coordinate
with other agencies
Section 4130.4 Authorization of Temporary Changes in Grazing Use Within
the Terms and Conditions of Permits and Leases, Including Temporary Nonuse
In the proposed rule, we revised section 4130.4 to provide
additional detail on what is meant by the phrase ``within the terms and
conditions of the permit or lease.'' When we refer to ``temporary
changes within the terms and conditions of the permit or lease,'' we
mean changes to the number of livestock and period of use that BLM may
grant in any one grazing year. We authorize such changes in response to
annual variations in growing conditions that arise from normal year-to-
year fluctuations in temperature and the timing and amounts of
precipitation and to meet locally established range readiness criteria.
Most permits or leases include a period of use described by specific
dates. These dates do not always account for the natural fluctuations
that can lead to forage availability outside the listed dates. Existing
regulations allow for temporary changes, but this authority has, at
times, been applied inconsistently within BLM. The new definition
clarifies the amount of flexibility BLM authorized officers will have
when considering temporary changes. Under the revised section,
``temporary changes in grazing use within the terms and conditions of a
permit or lease'' includes temporary changes in livestock number,
period of use, or both, that would--
(1) Result in temporary nonuse; or
(2) Result in forage removal that does not exceed the amount of
active use specified in the permit or lease, and occurs either not
earlier than 14 days before the begin date specified on the permit or
lease, and not later than 14 days after the end date specified on the
permit or lease, or that conforms to flexibility limits specified in an
allotment management plan under section 4120.2(a)(3).
The provision also applies to temporary changes that result in both
temporary nonuse and forage removal 14 days or less before the begin
date and/or after the end date, as just described in (2), above.
In the final rule, we removed language listing reasons for allowing
temporary changes in grazing use within the terms and conditions of the
grazing authorization. First, comments objected to the reference to
locally established range readiness criteria, and second, the list may
be too restrictive. We also removed paragraph (a)(2), because it is
unnecessary to require consultation, cooperation, and coordination with
the applicant.
We have amended paragraph (d)(2) of this section in the final rule
by changing the word ``will'' that appeared in the proposed rule to
``may'' in order to avoid an interpretation of this provision that BLM
has no discretion to deny temporary nonuse. We also added a reference
to ``temporary nonuse'' in the section heading as a convenience to
readers, and reorganized the section to increase clarity.
In the proposed rule we moved provisions addressing approval of
``temporary nonuse'' from section 4130.2 to section 4130.4 and amended
them to give BLM discretion to approve applications on a year-to-year
basis for temporary nonuse of all or part of the grazing use authorized
by a permit or lease when the nonuse is warranted by rangeland
conditions or the personal or business needs of the permittee or
lessee. When rangeland conditions are such that less grazing use would
be appropriate, BLM encourages operators, if they have not done so
already, to apply for nonuse for ``conservation and protection of
rangeland resources.'' Events such as drought, fire, or less than
average forage growth typically result in ``rangeland conditions'' that
will prompt the need for temporary nonuse of all or part of the grazing
use allowed by the permit or lease.
Paragraph (f) of this section (Sec. 4130.2(h) in the existing
regulations, as revised for clarity) continues BLM's current discretion
to issue a nonrenewable authorization to other qualified applicants to
use the forage that became temporarily available as a result of nonuse
approved for business or personal reasons. On the other hand, when BLM
approves nonuse because we agree that rangeland conditions would
benefit from temporary nonuse, we do not authorize another operator to
use it.
We also moved current paragraph (a) to the end of section 4130.4
and redesignated it as paragraph (g). In newly designated paragraph
(g), we made editorial changes.
The principal change that we made in the proposed rule with regard
to temporary nonuse was to remove the current three-consecutive-year
limit on temporary nonuse. We proposed that BLM should have the same
discretion to approve temporary nonuse as existed before the 1995 rule
changes, to provide us with management flexibility needed to respond to
the common occurrence of site-specific fluctuations in available forage
levels that may occur for a variety of reasons as explained above.
First we will consider the comments that discussed temporary
changes in grazing use within the terms and conditions of the permit or
lease, and then the comments that discussed the changes that we
proposed with regard to temporary nonuse.
One comment stated that grazing permits should contain soil, water,
riparian vegetation, and wildlife objectives, in order to help
determine whether it is appropriate to authorize early opening or late
closing of grazing. The comment continued that most detrimental changes
in condition of soil, water, riparian vegetation, and wildlife result
from ill-planned season of livestock use, duration of use, or amount of
utilization. It concluded that terms and condition of the permit need
to contain objectives that can address these activities, and that BLM
should only change grazing use within the terms and conditions of
permit or lease if they have monitoring and assessment data to support
the change in use, and the change does not result in removing more
forage than the ``active use'' specified by the permit or lease.
Objectives for soil, water, riparian, wildlife, and other resources
are usually developed through the planning process and included in land
use plans,
[[Page 39476]]
allotment management plans, or activity plans, becoming more site
specific at each level of planning. A grazing permit must conform to
the objectives of land use plans. Therefore terms and conditions are
designed to achieve the objectives established in the relevant land use
plans and it is not necessary to restate objectives in the permit. In
addition to objectives established in overarching plans, standards for
rangeland health provided for in section 4180.2 establish levels of
physical and biological condition or degree of function and minimum
resource conditions that must be achieved or maintained. Terms and
conditions of permits must provide for achievement of the rangeland
health standards. The proposed rule at section 4130.4(b)(1) already
limits the temporary use provided for in this section to the amount of
active use specified in the permit or lease. Approval of applications
for temporary changes will be dependent on range conditions as observed
by the authorized officer, following the criteria in internal guidance
and in the standards and guidelines under subpart 4180.
Another comment suggested that the rule should provide that grazing
use that removes more forage than active use specified in the permit or
lease be justified by monitoring and assessment data.
The regulations in this rule already address this situation. If BLM
were to authorize use greater than the active use specified in the
permit or lease, we would do so under section 4110.3-1, which addresses
increasing active use, and base it on monitoring or documented field
observations.
Several comments, including one from a state wildlife agency,
stated that the rule should provide for consultation with state
wildlife departments before BLM authorizes changes within the terms and
conditions of the permit. It went on to say that, just as the criteria
to be used in justifying temporary changes in grazing use within the
terms and conditions of a permit or lease include annual fluctuations
in timing and production of forage and rangeland readiness criteria, so
are the needs of wildlife species dependant upon these fluctuations.
One comment agreed with BLM's approach on this issue, but stated that
we should consider wildlife-critical periods when deciding whether to
authorize the temporary changes in grazing terms within the terms of
the permit or lease.
Consideration of wildlife habitat needs occurs during all stages of
planning the multiple use of public lands. During each stage of this
planning process--land use planning, allotment management planning and
the formulation of individual permits and leases--the state is invited
to participate in developing objectives and strategies to protect
wildlife habitat. Since the temporary changes are by definition within
the terms and conditions of permits or leases, we believe the state has
had ample opportunity to communicate the wildlife-critical periods and
specific habitat needs that BLM must consider while processing an
application for temporary changes in grazing use.
Other comments urged BLM to reconsider applying range readiness
criteria, and one asked for a definition of range readiness. They
opposed the idea of using ``locally established range readiness
criteria'' in this context, stating that the concept of ``range
readiness'' is no longer supported by the range science community.
Another comment stated that BLM should amend Sec. 4130.4(a)(1)(ii) to
provide that the ``locally established range readiness criteria'' must
have been established in applicable land use plans, activity plans, or
decisions. The comment strongly supported recognizing that range
readiness for turn out may vary from year to year, and stated that
providing a 14-day window is prudent. Several comments stated that the
authorization of temporary changes of use should not be based on active
use or preference, but on whether forage is actually available.
We have amended this section in the final rule by removing the
references to the reasons for authorizing temporary changes in grazing
use. Thus, the final rule does not contain any reference to ``range
readiness criteria.'' We made these deletions for two reasons. First,
we did not want to limit our discretion as to why we may authorize
temporary changes in grazing use, and second, we recognize that the
method for determining ``range readiness'' is controversial and
technical in nature. It is therefore more appropriately addressed in
manual, handbook, or other technical guidance. This guidance will
include the criteria BLM will follow in authorizing such changes, and
appropriate consultation requirements. BLM considers the availability
of forage as well as many other physical and biological factors when
processing an application for temporary changes in grazing use.
One comment urged BLM to allow changes within the terms of the
permit or lease only if BLM determines it appropriate before the
grazing season, to avoid the possibility of legitimizing trespass by
changing grazing use periods or numbers part way through the grazing year.
BLM will not use the provision to approve changes in use after the
fact, agreeing that it is inappropriate to legitimize grazing trespass.
It is also impossible to determine before the grazing season starts
what conditions will exist in ensuing months. We have amended paragraph
(e) of this section in the final rule to make it clear that
applications for changes within the terms and conditions must be filed
in writing on or before the date the change in grazing use would begin.
We have also amended paragraph (b) by adding language recognizing that
the allotment management plan may allow grazing beyond the 14-day
limit. Nevertheless, grazing would still be limited to the total active
use allowed in the permit or lease.
One comment urged BLM to consider shortening the limit for grazing
within the terms and conditions of the permit or lease to 7 days
instead of 14 days. The comment stated that some permittees will
request a 14-day opening as soon as forage is bite high. It went on to
say that 7 days is plenty to allow for varying weather conditions. The
comment also said that the same limit should apply at the end of the
grazing season, and that if there is more than 7 days of forage
remaining, it should be banked for the next year. Another comment asked
BLM to explain how the possible 28-day combined extension of the
grazing period will not result in overgrazing.
We have determined that 14 days before the begin date in the permit
or lease provides an appropriate degree of flexibility in determining
when to allow turn out, as does 14 days after the end date to require
round up. As for the suggestion that excess forage measured in days
should be saved for the next year, it is unnecessary to state this in
the regulations. The provision already limits its application to the
amount of active use called for in the permit or lease. Forage in
excess of this amount will not be allocated under this provision, so
this provision will not lead to overgrazing. The regulations allow
increases in active use under section 4110.3-1 in appropriate
circumstances.
Many comments raised concerns about the temporary nonuse provisions
in section 4130.4(c) through (e).
Several comments expressed the concern that, if we adopt the rule
as proposed, BLM would be unable to deny nonuse for conservation
purposes. The comments pointed out the possibility that since the rules
do not limit the number of years that a grazing
[[Page 39477]]
operator could potentially be approved for nonuse of his grazing permit
or lease, conservation organizations could acquire grazing permits and
perpetually receive BLM approval not to use them for reasons of natural
resource conservation, enhancement, or protection. Another comment
supporting the proposed rule expressed concern that BLM's discretion to
grant nonuse for more than 3 years allows a de facto ``conservation
use'' permit in violation of the TGA, FLPMA, and the decision in Public
Lands Council v. Babbitt, supra. Also, the proposed rule stated that
BLM ``will'' authorize nonuse to provide for natural resource
conservation, enhancement or protection or for the personal or business
needs of the permittee.
In the final rule, BLM has changed the term ``will'' to ``may'' to
make clear that BLM retains the discretion to disapprove nonuse if BLM,
based on the facts applicable to the circumstances, does not agree that
nonuse is warranted.
The final rule also does not change provisions that authorize BLM
to cancel permits and leases if they are not used for the purpose
intended--namely, to graze livestock--and to award them to other
applicants in accordance with the decisions, goals, and objectives of
the governing land use plan. BLM believes it necessary to retain
discretion to approve or disapprove nonuse based on the facts and
circumstances at hand, so that it may adapt its management to the needs
of the resources as well as the resource user. The regulations adopted
today provide that unless BLM approves nonuse in advance, it is not
approved. BLM may deny nonuse if we find that it is not needed either
for natural resource conservation, enhancement or protection, or for
personal or business needs of the permittee. If BLM denies a
permittee's application for nonuse, the permittee would be obligated to
graze in accordance with their permit or lease. If the permittee failed
to make use as authorized by their permit or lease for two consecutive
fee years, then BLM could cancel the unused preference under section
4140.1(a)(2) and allocate it to other applicants under sections 4110.3-
1(b) and 4130.1-2.
If BLM approves nonuse for personal or business reasons of the
permittee or lessee, we may authorize other qualified applicants to
graze the forage that is temporarily made available due to the nonuse
by the preference permittee under section 4130.4(e). If BLM approves
nonuse for reasons of resource conservation, enhancement, or
protection, and should a qualified applicant believe that BLM's
approval of nonuse for any of these reasons is not justified, that
applicant could apply to use the forage that he believes to be made
available as a result of BLM's approval of nonuse. Because the
regulation at section 4130.4(e) would not allow BLM to approve an
application for forage made available as a result of temporary nonuse
approved for reasons of resource conservation, enhancement, or
protection, BLM would then necessarily deny such an application for use
by grazing decision. This grazing decision would be subject to protest
and appeal, thereby providing the applicant an opportunity to
demonstrate to an administrative law judge or board why he believes
BLM's decision to approve the nonuse application was in error, and to
have the court compel BLM to either require that the forage be used by
the preference permittee or to make the forage available for use by
other applicants.
Some comments stated that the Supreme Court found that unlimited
nonuse was not consistent with the TGA.
The final rule does not authorize BLM to grant ``unlimited''
nonuse. The final rule restores to BLM flexibility to approve permittee
or lessee applications for nonuse as long as BLM determines annually
that the nonuse is warranted by resource needs or by the personal or
business needs of the operator.
One comment questioned why temporary nonuse must be subject to
annual application, stating that in at least some cases it should be
easy to predict that the benefits from nonuse would take several or
even many years to accumulate. The comment suggested that an analysis
of historic employment of temporary nonuse might shed light on reasons
ranchers applied for temporary nonuse: BLM proposals to reduce AUMs;
business reasons of the permittee or lessee; or cooperative agreements
to allow range or riparian recovery.
Annual reconsideration of temporary nonuse allows BLM to determine
whether it is still necessary. Of course, in some cases the
determination will be easy to make. Historical analysis of temporary
nonuse is not necessary. Of the three reasons for nonuse suggested in
the comment, two are explicitly provided for in the regulations at
section 4130.4(d)(2)(i) and (ii). As for the other reason suggested for
temporary nonuse, that BLM is proposing to reduce AUMs, temporary
nonuse may be a preferable, less drastic, alternative, which will give
the range an opportunity to recover to forage levels that will support
the permitted AUMs before BLM cancels the AUMs.
One comment urged BLM to ensure that the grazing regulations
provide for maximum flexibility for nonuse, or reduced use, including
allowing nonuse for 3 years for reasons other than resource management.
Upon 3 years of nonuse, then, according to the comment, BLM should
consult with the preference holder to determine how to make the nonuse
AUMs temporarily available to other applicants engaged in the livestock
business, or to reallocate them permanently in accordance with the
grazing regulations. The comment concluded that BLM should limit nonuse
for resource protection reasons to 5 years to protect the range from
rangeland health concerns that some contend start to accrue after 5
years without livestock grazing.
The final regulations provide sufficient flexibility for approving
nonuse for reasons other than resource management. BLM should not wait
for 3 years before authorizing other applicants to graze AUMs made
available due to a preference permittee's nonuse for personal or
business reasons, as there may be times where the use can appropriately
be made immediately. However, we disagree that there should be an
arbitrary limit on nonuse for reasons of resource conservation,
enhancement, or protection. There may be times when nonuse based on
these needs is justified for longer than 5 years, which BLM will
determine based on monitoring and standards assessment.
One comment supported the proposed policy that removes the current
3 consecutive year limit on temporary nonuse of a grazing permit,
because it gives BLM and the permittee more flexibility in resting
allotments to protect and restore natural resources.
One comment suggested the rule should include a description of the
types of information and documentation that a permittee must submit to
``justify'' nonuse. The comment expressed concern that if the level of
detail required is too great, it may become too burdensome on the
permittee at the expense of the wildlife or habitat resource. The
comment also stated that the requirement that nonuse be re-authorized
annually could prove burdensome to the permittee. Finally, there was
concern that these requirements may ultimately conflict with Sections
7(a)(1) and 7(a)(2) of the ESA and conservation agreements and
strategies for sensitive species.
BLM does not believe that the application process will be
burdensome. BLM's long-standing procedure is annually to provide its
permittees and lessees a grazing application reflecting the use
authorized by their permit or
[[Page 39478]]
lease, with an invitation to amend it within certain parameters if it
does not meet their needs for that year. The new nonuse provision will
not create any additional burden. Further, BLM does not believe that
expanding its flexibility to allow longer periods of temporary nonuse
will ultimately conflict with Sections 7(a)(1) and 7(a)(2) of the ESA
or conservation agreements and strategies for sensitive species. In
fact, just the opposite is expected with the use of this flexible
resource conservation tool.
One comment urged that BLM should not propose reductions and
eliminations in resting or nonuse because this action, which is only
beneficial to the permittee or lessee, implies that BLM is only
concerned about short-term production of livestock and not the long
term benefit of stewardship.
BLM does not believe that granting nonuse when it is beneficial to
a permittee or lessee implies that BLM is only interested in short term
livestock production. Long-term stewardship of public lands is inherent
in the stated missions and goals of the agency in Section 102(a) of
FLPMA. There are also many sections (such as section 4130.3-3(b),
subpart 4180, etc.) in the grazing regulations that provide mechanisms
for exercising stewardship of the public lands to ensure that the lands
are productive and available to future generations. Additionally, the
concept is embodied in BLM's mission statement: ``sustains the health,
diversity, and productivity of the public lands for the use and
enjoyment of present and future generations.''
Another comment supported the proposal to allow annual re-
authorization of nonuse, based on the local manager's judgment, to
promote flexibility in management of BLM grazing permits. The comment
noted, however, that this flexibility would also provide a permittee
the opportunity to retain monopoly control of an allotment and its
resources at low or no cost. The comment suggested a limit on nonuse of
3 to 5 years. At that point, a more careful review of the situation and
future alternatives would be conducted, and a decision could be made to
continue the nonuse or move ahead with other options.
It is necessary to retain discretion to approve or disapprove
temporary nonuse based on the facts and circumstances at hand, so that
BLM may adapt its management to the needs of the resources as well as
the resource user. BLM may deny nonuse if we find that it is not needed
for natural resource conservation, enhancement, or protection, or for
the personal or business needs of the permittee. Under the final rule,
however, temporary nonuse may be approved annually for longer than
three years, if the reasons for nonuse remain. BLM believes it is
important to require an annual request for temporary nonuse in order to
re-assess the circumstances. With this annual re-assessment,
establishing a firm limit on the number of years of nonuse is unnecessary.
One comment suggested that the regulations should provide that when
permit holders request nonuse or a reduction or suspension of what is
currently permitted use, such requests would be granted.
Section 4130.4 provides that BLM may authorize temporary nonuse for
natural conservation reasons or for business or personal reasons of the
permittee or lessee. If the applicant supports the request with
appropriate reasons, BLM will normally approve the request, on a year-
to-year basis, as provided by section 4130.4(d)(1)(ii). BLM believes it
necessary to retain discretion to approve or disapprove nonuse based on
the facts and circumstances at hand, so that it may adapt its
management to the needs of the resources as well as the resource user.
One comment stated that BLM's consideration of a request for
conservation use should consider whether that use would create a fire
hazard.
The final rule allows permittees and lessees to apply for temporary
nonuse for conservation purposes. BLM's deliberation regarding an
application for nonuse for conservation purposes will include
consideration of whether approval would result in other effects such as
unhealthy buildup of fuels.
Section 4130.5 Free-Use Grazing Permits
In the proposed rule, we removed all references to conservation
use, including in paragraph (b)(1) of this section, to conform the
regulation to the decision of the Tenth Circuit Court of Appeals. We
also removed the word ``authorized'' to keep the rule internally
consistent. No comments addressed these changes.
Section 4130.6-1 Exchange-of-Use Grazing Agreements
In the proposed rule, BLM invited comment regarding whether BLM
should facilitate ``trade-of-use'' arrangements between operators (68
FR 68456). As stated in the proposed rule, this type of arrangement
allows one permittee or lessee to own or control unfenced intermingled
private lands that are not within his allotment, but in the allotment
of a second permittee or lessee. Some comments urged that BLM
facilitate ``trade-of-use'' in this type of situation by collecting a
grazing fee from the second permittee for the use of lands owned by the
first permittee but located in the second permittee's allotment, and
crediting the fees collected from the second permittee for these lands
to the first permittee's grazing bills.
Comments on the proposed rule either urged BLM to facilitate this
arrangement or urged BLM not to facilitate this arrangement, but did
not provide reasons other than either that it would ``contribute to
multiple use benefits'' (from comments supporting BLM facilitation), or
that it would not (from comments opposing BLM involvement).
We have made no change in the final rule in response to these
comments. BLM continues to believe that ``trade-of-use'' arrangements
between private parties are best handled by the private parties. The
regulation continues to provide that lands offered in exchange-of-use
must be unfenced and intermingled with the public lands in the same
allotment.
Another comment urged BLM to include in this section a provision
stating, ``BLM will include in calculation of the total allotment or
lease livestock carrying capacity, the total number of livestock
carrying capacity AUMs of lands offered for exchange of use as
determined by a rangeland survey conducted by persons qualified as
professional rangeland managers.''
We have not adopted this comment in the final rule. The regulation
continues to limit the level of use on public lands authorized by an
exchange-of-use agreement on public lands to the livestock carrying
capacity of the lands offered in exchange-of-use. Guidance regarding
how this level is determined is best contained in grazing management
handbooks and technical references, not in the grazing regulations.
Section 4130.6-2 Nonrenewable Grazing Permits and Leases
In this section we removed the requirement that BLM consult with
the interested public before issuing nonrenewable permits and leases.
BLM issues nonrenewable permits and leases to allow grazing use of
additional forage that is temporarily available. Here are two examples
of when we apply this provision: when BLM has approved an application
for nonuse for personal or business reasons under section 4130.4; and
when we need to manage grazing use authorized on ``cheatgrass'' ranges.
[[Page 39479]]
For purposes of clarity and ease of usage, in the final rule we
have further amended the second sentence of paragraph (b) by adding a
cross-reference to section 4110.3-1(a), which provides for the
disposition of additional forage temporarily available.
Under the final rule, consultation, cooperation, and coordination
with the interested public is no longer required before a nonrenewable
grazing permit or lease is issued. This change is intended to improve
the administrative efficiency of grazing management operations and
allow for a rapid response during the limited time periods when
additional forage, such as cheatgrass forage, is available.
In the final rule, we have added a new paragraph (b) giving the
authorized officer the option of making a decision that issues a
nonrenewable grazing permit or lease, or that affects an application
for grazing use on annual or designated ephemeral rangelands, effective
immediately or on a date established in the decision. This provision
replaces and meets the need served by paragraphs (c)(2) and (3) of
section 4160.4 in the proposed rule. Those paragraphs would have
provided that decisions authorizing temporary nonrenewable grazing or
grazing on ephemeral or annual rangeland are to be implemented despite
a stay by OHA.
We have decided to allow such grazing to proceed, pending appeal,
for several reasons. In some cases, we have a limited time to authorize
forage to be grazed before it loses its nutritional value. Under
existing rules, upon an appeal and petition for stay (regardless of
whether the stay is granted), BLM cannot authorize the use until the
end of the regulatory time frames for addressing the stay petition (45
days in addition to the 30-day appeal period, for a total of 75 days,
or 2.5 months), and often by that time it is too late to utilize the
forage because the forage has lost most of its value. In annual range
(or converted annual range such as cheatgrass ranges), this may result
in a buildup of wildfire fuels. BLM believes that this approach is a
more efficient management tool. Parties may still appeal and seek a
stay, but the decision will be immediately effective and there will be
no protest period.
This allows BLM to manage the utilization of annual or ephemeral
rangelands on a real time basis (under land use plans, activity plans
and other documents that contain multiple use objectives), and allows
those who may wish to dispute such a decision the opportunity for review.
Moreover, the provision does not exempt the action of issuing a
nonrenewable permit or lease or approving or disapproving an
application for use in annual or designated ephemeral rangelands from
the normal consultation, NEPA review, and approval requirements.
The phrase ``orderly administration of the rangelands'' in this
provision requires BLM to explain in its decision the circumstances
that justify placing such a decision in full force and effect.
Other sections of the rules are cross-referenced accordingly (those
being sections 4160.1(c) and 4160.3(c)).
A comment urged BLM to reconsider the proposal to increase grazing
on cheatgrass ranges because of the potential impact of cheatgrass on
native grasses and ecosystem functions.
Grazing of cheatgrass ranges was given as an example in the
preamble of the proposed rule when BLM would not be obliged to consult
with the interested public. BLM would need to implement cheatgrass
range grazing promptly at specific times and under specific conditions.
BLM is not proposing permanent increases in grazing on cheatgrass ranges.
A few comments expressed concern that public participation under
NEPA would not be sufficient, and noted the possibility that a NEPA
categorical exclusion could be implemented. One comment requested that
the rule be modified to exclude any possibility of a categorical
exclusion. Several comments supported the change as proposed.
At the time the October 2004 FEIS was published (June 2005), BLM
was not proposing a categorical exclusion (CX) for issuing nonrenewable
permits, and responded accordingly. On January 25, 2006 (71 FR 4159),
BLM proposed a CX for issuing nonrenewable permits, limited to those
allotments that have been assessed and evaluated and the authorized
officer determines and documents that the allotment meets land health
standards or where existing livestock grazing is not a factor in not
achieving land health standards. The number of permit or lease
decisions that could make use of the CX would be further limited by the
12 extraordinary circumstances listed in Appendix 2 of Departmental
Manual 516 DM 2, and BLM must document that the grazing use authorized
by the nonrenewable permit would not change the status of the land
health standards. This CX proposal (which is not a part of this
rulemaking), if adopted, would lead to a change in the result of the
rule, changing somewhat the ability of interested publics to
participate in the consideration of issuing nonrenewable permits.
However, if the CX were to be adopted, the interested public would
still be able to participate in the process of developing land use
plans and activity plans, where resource objectives, allocation of
resource use (including allocation of excess forage through
nonrenewable permits), and parameters for resource management
(including the dates of use that could be allowed under a nonrenewable
permit) are established; in developing reports that lead to a
determination regarding status of land health; and at the decision
stage under subpart 4160.
Comments stated that BLM should retain the authority to authorize
livestock grazing by issuing nonrenewable permits or leases to help
maintain the health of rangelands in situations where significant
authorized non-use by livestock exceeds a period of time appropriate to
the respective western ecosystem.
BLM retains the authority to authorize livestock grazing on an
allotment even if the preference permittee is granted nonuse of his
permit to graze that allotment for personal or business reasons.
Although the final rule no longer restricts nonuse of a grazing permit
or lease to 3 consecutive years, section 4130.6-2(d) allows BLM to
issue a temporary and nonrenewable grazing permit or lease to a
qualified applicant when forage is temporarily available, the use is
consistent with multiple use objectives, and it does not interfere with
existing livestock operations. Under that provision and section
4130.4(e), when an allotment has livestock forage available that is not
being used by a preference permittee whom BLM has approved for
temporary nonuse for business or personal reasons, BLM may grant other
qualified applicants a nonrenewable permit or lease to graze it.
Section 4120.3-3(c) requires that the preference permittee or lessee
cooperate with the temporary use of forage by the permittee or lessee
with a temporary, nonrenewable authorization from BLM. In contrast, if
BLM approved an application by the preference permittee for nonuse for
reasons of resource conservation, enhancement, or protection under
section 4130.4(d)(2)(i), BLM would deny an application for a
nonrenewable permit under section 4130.4(e) and subpart 4160. In this
circumstance, if the applicant for a temporary, nonrenewable permit or
lease disagreed with BLM's determination that the nonuse was warranted
for reasons of resource conservation, enhancement, or protection, he
would have the option to protest and appeal the grazing decision that
denies his application, and BLM would need to defend the determination
[[Page 39480]]
that the nonuse was warranted for the reasons specified.
One comment stated that BLM should address the effects of the
grazing use that would be authorized by a nonrenewable permit on seed
replenishment by annual forbs, root reserve replenishment by perennial
grasses and forbs, and the potential for damage to soil crust.
We believe that it is unnecessary to address these concerns in the
regulations, since BLM undertakes appropriate environmental review
before issuing nonrenewable permits. Any impacts, such as those
identified in the comment, would be addressed as a result of that
environmental review.
Section 4130.8-1 Payment of Fees
We proposed editorial changes to this section to make it easier to
read, and to correct a cross-reference in the existing regulations in
paragraph (f) (paragraph (h) in the proposed rule) to subpart 4160. In
the final rule we further amended paragraph (h) of section 4130.8-1 to
make it clear that failure to make payment within 30 days is a
violation of a prohibited act in section 4140.1 and may result in
enforcement action. As a practical matter, if a payment is late by only
a few days, there will not be time for BLM to issue an enforcement
decision. However, BLM will consider such late payments in determining
whether a permittee or lessee has a satisfactory record of performance.
We received numerous comments on grazing fees. Many comments
favored increasing BLM's grazing fees to help fund monitoring
activities and range improvements and to offset the costs of managing
public rangelands. The reasons cited for raising fees included the
following: The current system skews the market, below-market fees
promote overgrazing: It is inequitable to increase fees for recreation
and not for grazing; and it is appropriate to reduce taxpayer burden.
Comments stated that BLM should no longer subsidize public land
ranching. Several comments recommended that BLM increase fees to fair
market value or to private land lease rates but offer ranchers the
financial incentives of lowered fees in return for conservation
easements or for management that improves riparian areas, land health,
and maintenance of wildlife habitat and corridors. Many comments stated
that BLM should allow competitive bidding for allotments, and listed a
number of reasons, including economic efficiency, promotion of multiple
use and rangeland health, reduction of taxpayer burden, and emulation
of state and eastern national forest grazing fees.
The grazing program has many purposes. Congress, in relevant
statute, has directed that a reasonable fee be charged for grazing use.
There are many requirements that we have under the law, two of which
are to protect the health of the land and to manage the public lands on
a multiple use basis, which includes livestock grazing. The 1995
regulations and the changes contained in this rule combine to protect
the health of the land while allowing appropriate public land grazing.
The amount of appropriated funds that go toward the grazing program as
opposed to that which is returned in various fees and charges does not
amount to a subsidy. Additionally, there are benefits to the general
public in open space preserved as private ranch land attached to
Federal allotments that might not exist but for the grazing program.
Benefits also include the production of beef as well as the preservation
of Western heritage that is important to the American identity.
As indicated in the Advanced Notice of Proposed Rulemaking (68 FR
9964, March 3, 2003), as well as the proposed rule (68 FR 68452,
December 8, 2003), we were not intending to address grazing fee issues
in this rulemaking. We specifically stated that increasing grazing fees
and restructuring grazing based on market demand were outside the scope
of this rulemaking. We have not analyzed any of the grazing fee related
options presented in comments, have not addressed grazing fees in the
proposed or final rule, and have not adopted any of the
recommendations. The existing fee structure is not altered by this rule.
One comment stated that BLM should implement grazing fee increases
immediately rather than implement them over 5 years because public land
ranchers should not be protected from market forces.
We did not propose any changes in grazing fees nor in how changes
in grazing fees would be implemented. It appears that the individual
making this comment misinterpreted our proposal to phase in
implementation of changes in active use over a 5 year period when such
changes were in excess of 10 percent. This proposal applied only to
changes in grazing use--not changes in grazing fees.
Many comments recommended that the sheep/goat to cattle equivalency
be changed from ``5 sheep or 5 goats'' to ``7 sheep or 7 goats.'' They
asserted that this proposed change would not involve a change in any
portion of the established grazing fee formula, but would track more
closely the amount of forage used by sheep as compared to cattle.
Several comment letters pointed out that the 5:1 ratio used by BLM,
originated from data collected on sheep and cattle grazing in Utah from
1949 to 1967. The research data was collected by Dr. C. Wayne Cook, who
used the concept of metabolic body weight to reflect the differences
between nutritional requirements of different species. Dr. Cook's
research was based on forage consumption and energy expenditures for
sheep and cattle and indicated an approximate 5:1 ratio; although Dr.
Cook concluded that ``these calculations do not represent a conversion
factor for exchanging numbers of one kind of animal for another on the
range.'' This early research was also based upon using a 914 lb.
lactating cow and her calf as an AUM, and a 139 lb. ewe and her lamb
for forage consumption estimates. The comments stated that in 1991, the
Forage and Grazing Terminology Committee, with participation from the
U.S. Departments of Agriculture and Interior, published new
standardized definitions of animal units. The animal unit was defined
as a 1,100 lb. non-lactating bovine, and estimated the weight of a
mature ewe at 147 pounds. This new definition indicated that a 6.5:1
ratio would be appropriate. Comments also cited a study by the USDA-ARS
1994, Animal Unit Equivalents: An Examination of the Sheep to Cattle
Ratio for Stocking Rangelands which supported a 7:1 ratio. This study
was submitted with comments by several organizations. Several of the
comments objected to the rationale given in the proposed rule for not
addressing this issue, which was that the ratio is used for the purpose
of calculating grazing fee billings and is therefore outside the scope
of the rule. Comments stated that this issue is not a grazing fee issue
but an issue of equity and improved management for the health of
western rangelands.
The sheep to cattle ratio is strictly a matter involving grazing
fees and is therefore outside the scope of this rule. Confusion
regarding the role of the sheep to cattle ratio is understandable due
to the two distinct definitions of ``animal unit month'' in the grazing
regulations. However, a sheep to cattle ratio is only stipulated in one
of these definitions.
The first definition is used in all aspects of grazing
administration except fee calculation. See section 4100.0-5. Here, an
AUM is defined as follows: ``Animal unit month (AUM) means the amount
of forage necessary for the
[[Page 39481]]
sustenance of one cow or its equivalent for a period of 1 month.'' No
sheep to cattle ratio is stipulated, no specific amount of forage is
designated, and no equivalency to any other animals is mentioned.
The second definition of AUM, the definition at issue here, is
found at section 4130.8-1(c). It is as follows: ``For the purposes of
calculating the fee, an animal unit month is defined as a month's use
and occupancy of the range by 1 cow, bull, steer, heifer, horse, burro,
mule, 5 sheep, or 5 goats * * *.'' This definition strictly pertains to
the calculation of fees. The ratios of all kinds and classes of
livestock to one another are based upon the administration of a month's
use and occupancy, not the amount of forage necessary for their
sustenance or any other biological measure. This method of calculating
the fee facilitates efficiency and consistency in permit administration
by controlling variables associated with ecological site, vegetation
composition and/or quality, topography, pasture, allotment, grazing
management, breed, size, weight, physiological stage, metabolic rate, etc.
On the other hand, one comment stated that each sheep and goat
should be counted as 1 animal unit because all animals should be
charged, and because any other way of accounting allows too much
grazing.
As previously indicated, issues related to the fee structure,
including the definition of an AUM for purpose of calculating fees, are
not being addressed in this rule. In response to this comment, however,
we wish to clarify that, as defined in section 4100.0-5, an AUM is
``the amount of forage necessary for the sustenance of one cow or its
equivalent for a period of 1 month.'' On a forage-consumption basis, 5
sheep or goats grazing for one month is, by regulation, ``equivalent''
to one cow grazing for one month, and therefore comports with the
regulation.
One comment stated that BLM's practice of not charging a grazing
fee for calves under 6 months is antiquated, and BLM should charge a
fee for such calves.
As previously stated, we are not addressing issues related to the
fee structure, including the definition of an AUM for the purpose of
calculating fees. In response to this comment, however, we provide the
following information for clarification of the exclusion of calves 6
months or younger from the calculation of fees. Typically, calves under
6 months of age are not weaned and therefore rely on their mother's
milk rather than forage as their primary source of sustenance. Because
grazing fees are charged for the amount of forage consumed, an animal
unit is considered to be a mother cow and her calf less than 6 months
of age, unless the calf has been weaned or becomes 12 months of age
during the authorized period of use.
Another comment urged BLM to amend the definition of an AUM in
section 4130.8-1 by specifying that 2 steers or heifers that are
between 1 and 2 years old will equal one AUM for the purposes of
calculating the grazing fee. The comment explained that a heifer will
not calve until she is over 24 months of age. Her weight is not equal
to that of a grown cow. A weaned steer or heifer that weighs 500 lbs.
going on an allotment will not consume forage equal to that consumed by
a cow. In daily intake, it will require 2 steers to equal 1 cow. The
comment concluded that this change would allow for more flexibility in
livestock operations.
The definition of an AUM in section 4130.8-1(c) is strictly for
``the purposes of calculating the fee.'' As we have stated throughout
this rulemaking process, matters involving grazing fees are outside the
scope of this rule. Therefore, the definition of AUM in section 4130.8-
1(c) is outside the scope of this rule.
Numerous comments recommended that BLM recognize that the
surcharge, which is added to grazing fee billings under section 4130.8-
1(d) of the current regulations where an operator does not own the
livestock that are authorized by permit or lease to graze on public
lands, is not a grazing fee and eliminate or reduce surcharges.
We have not changed the requirement that a surcharge be added to
grazing fee billings where an operator does not own the livestock that
are authorized by permit or lease to graze on public lands (except that
the paragraph is redesignated (f) in the rule). The surcharge equals 35
percent of the difference between current Federal grazing fees and the
prior year's private grazing land lease rates for the appropriate state
as determined by the National Agricultural Statistics Service. Sons and
daughters of the permittee or lessee are exempt from the surcharge
where they meet the conditions listed at section 4130.7(f).
The surcharge is BLM's most recent response to a longstanding
problem, i.e., a potential for windfall profits stemming from pasturing
agreements. In 1984, Congress enacted legislation that was intended to
recapture such profits for the Federal treasury. The legislation
provided that ``the dollar equivalent of value, in excess of the
grazing fee established under law and paid to the United States
Government, received by any permittee or lessee as compensation for
assignment or other conveyance of a grazing permit or lease, or any
grazing privileges or rights thereunder, and in excess of the
installation and maintenance cost of grazing improvements provided * *
* shall be paid to the Bureau of Land Management.'' Continuing
Appropriations, 1985--Comprehensive Crime Control Act of 1984, Pub. L.
98-473, 98 Stat. 1839 (1984). The penalty for noncompliance was
mandatory cancellation of the operator s permit or lease. BLM
promulgated regulations to implement the 1984 legislation.
In 1986, the General Accounting Office reviewed the extent to which
BLM permittees and lessees sublease their grazing privileges, and the
adequacy of our regulations to control this practice. One of the
recommendations in the resulting report (RCED-86-168BR) was to require
that subleasing arrangements be approved for a minimum of 3 years. Such
a lease constitutes a long-term commitment, and thus reduces the
potential for large, short-term profits. This recommendation was
promulgated in 1995, and continues in effect at section 4110.2-3(f).
In 1992, the Inspector General for the Department of the Interior
recommended that BLM adopt more stringent measures further reducing the
potential for collecting windfall profits through pasturing agreements
or subleasing of base property. Selected Grazing Lease Activities,
Bureau of Land Management, Report No. 92-I-1364 (Sept. 1992). BLM
responded by promulgating the existing surcharge provision at section
4130.8-1(d).
One comment stated that the surcharge is an obstacle to finding
ways to adapt to drought conditions. This comment stated that short-
term flexibility is important so that livestock can be moved rapidly
from an area in decline to an area where forage is available. Some
other comments stated that the surcharge is an obstacle to adjusting
stocking rates quickly when weather conditions change, and that the
surcharge results in the loss of cooperation among ranchers in the
event of a natural disaster. Finally, some comments stated that the
elimination of surcharges would improve management flexibility,
resulting in more effective relationships between BLM and operators, as
well as better land management.
Drought and other weather-related conditions are a perennial risk
in ranching and farming. We are not persuaded that the claimed extra
increment of risk, which may or may
[[Page 39482]]
not be added by the surcharge, is significant enough to warrant rescission.
Many comments suggested that the surcharge discourages livestock
owners from entering into pasturing agreements with permittees who pass
through their costs to livestock owners. According to these comments,
the surcharge causes permittees to lose opportunities to collect income
that could help them weather cycles of prosperity and hardship. These
comments also allege that the surcharge causes destabilization of
ranching operations, loss of open spaces and western communities, and
fragmentation of wildlife habitat.
The concerns expressed in these comments provide no basis for BLM
to eliminate or reduce the surcharge. Permittees who want to augment
their income without purchasing livestock may sublease all or some or
all of their public land grazing privileges to another operator along
with the base property associated with those grazing privileges. While
BLM must approve the transfer of the grazing preference and permit in
connection with the transaction, BLM assesses no surcharge.
Some comments suggested that the surcharge is too high for
permittees to profit from their operations while paying the surcharge.
Several of these comments stated that the surcharge makes public land
ranchers less competitive than ranchers who use only private land. One
of these comments stated that the surcharge gives non-resident
interests a foothold on public rangelands, and increases financial
pressures for owner-operated ranches. Finally, some of these comments
included two illustrations intended to show financial difficulties
resulting from the surcharge. In one illustration, a young rancher is
forced to abandon his efforts to establish a cow-calf operation. In
another, a rancher's widow incurs expenses in order to avoid the
surcharge, so that she and her family can remain on their ranch.
It is unreasonable to assign the surcharge the sole blame for an
individual rancher's financial success or failure. Ranching tends to be
a low-or negative-profit enterprise on both private and public lands
(Section 3.16 of EIS). There are many factors in addition to the
grazing fee surcharge that may affect whether a rancher will have
financial success; the rancher's business acumen, operating loan
interest rates, mortgage rates, livestock prices, business efficiency
of the enterprise, and the weather are among those factors. The
comments we received on financial impacts do not justify changing the
surcharge regulation.
Some comments stated that the surcharge was instituted as a
penalty, and that the surcharge is not a grazing fee issue. To the
contrary, it was implemented as a component of the grazing fee to
reduce the potential for windfall profits, as identified by the General
Accounting Office and the Office of the Inspector General. See 60 FR 9945.
One comment stated that BLM should not exempt children of
permittees from the surcharge in order to reduce the taxpayers' burden
for the management of public lands. One comment stated that, assuming
windfall profits are a large enough concern to justify the surcharge,
BLM should waive it in cases of drought and stewardship contracts, and
otherwise retain the requirement. Another comment stated that there is
no windfall profit to the rancher if he brings in outside cattle. A few
comments suggested that the surcharge should be eliminated because it
represents an unnecessary workload for BLM. One of these comments
stated that administering the surcharge takes valuable time away from
on-the-ground monitoring and management activities. Another stated that
the surcharge complicates the paperwork for both the operator and the
land manager. Some other comments requested that we consider providing
relief from the surcharge in cases of extreme drought, or where
permittees' finances are strained. Some comments stated that the
surcharge should not apply where ranchers sublease their private
property rights in their allotments. These suggestions, like all those
pertaining to fees, are beyond the scope of this rule. Moreover, none
of the comments provide persuasive evidence that the original
rationale--the potential for windfall profits--has changed. We have not
changed the provision establishing a surcharge.
One comment stated that BLM should waive surcharges for permittees
who enter into stewardship contracts to make surplus forage available
to other operators, pursuant to Section 323 of Public Law No. 108-7.
This comment states further that a permittee who provides surplus
forage under a stewardship contract performs a public service by
helping to preserve ranches, with their attendant benefits to local
economies, open spaces, and wildlife habitats.
As we have stated, we are not addressing issues related to grazing
fees, including surcharge issues. Furthermore, this rule is not
promulgated to implement the legislation (16 U.S.C. 2104 note) that
authorizes BLM to enter into stewardship contracts with private persons
or entities, or with other public entities. That legislation is the
subject of guidance issued by BLM and the U.S. Forest Service. 69 FR
4107, 4174 (January 28, 2004).
One comment stated that BLM should not allow ``after-the-grazing-
season'' payment of grazing fees.
After-the-grazing-season billing is allowed only where BLM has made
an allotment management plan (AMP) a part of the permit or lease and it
provides for the privilege of after-the-grazing-season billing. AMPs
generally contain grazing systems that prescribe limits of flexibility
in the number of livestock and period of use, allowing operators to
adjust grazing practices within such limits to meet the resource use
and management goals specified in the AMP. BLM may cancel the privilege
of after-the-grazing-season billing if the operator fails to submit the
required report of actual grazing use on time, fails to pay the grazing
fee billing on time, or if BLM finds that the use is erroneously
reported. BLM believes that after-the-grazing-season billing remains a
useful management and administrative tool that happens to be
advantageous to operators. In addition to relieving operators of the
requirement to pay fees in advance, it provides flexibility for
operators to make adjustments in grazing use, within pre-set limits,
without first having to apply for and receive approval for such
adjustments. BLM benefits from reductions in paperwork, and both BLM
and operators benefit from the improved working relationships that
result from AMPs.
One comment urged BLM to find a means of reimbursing counties for
bearing the burden of high Federal land ownership in parts of the West.
They suggested that BLM allocate a portion of grazing lease and permit
fees to the counties.
This issue is not addressed in the regulations. It is, however,
addressed in the TGA. Under 43 U.S.C. 315i, 12\1/2\ percent of revenues
from grazing permits and 50 percent of revenues from grazing leases are
distributed to the states in which the lands producing the revenues are
situated. The state legislature then decides how to spend those funds
for the benefit of the affected counties. We note also that counties do
receive Federal payments in lieu of property taxes under 31 U.S.C.
6901-6907. (In 2003, those payments totaled $2,050,000.)
Section 4130.8-3 Service Charge
The proposed rule removed the reference to conservation use in this
section to conform to the Tenth Circuit
[[Page 39483]]
decision. We also proposed to raise service charges for issuing
crossing permit, transferring grazing preferences, and canceling and
replacing grazing fee billings.
The proposed rule provided for the following increases in service
charges:
------------------------------------------------------------------------
Current Proposed
Action service charge service charge
------------------------------------------------------------------------
Issue crossing permit................... $10 $75
Transfer grazing preference............. 10 145
Cancel and replace grazing fee billing.. 10 50
------------------------------------------------------------------------
Upon internal review, we have expanded the third action in the
table to include a $50 fee for supplemental grazing fee billings, which
BLM employs from time to time in lieu of canceling and replacing
billings. The current regulations include a service charge for
supplemental as well as replacement billings, so this change makes the
final rule consistent with the current regulations except as to the amount.
Some comments generally supported increases in the service charges,
stating that they would allow BLM's services to be self-supporting, or
stating that the service charges should better reflect the costs of
grazing administration. However, some of these comments objected to the
size of the proposed increases. One comment stated that the maximum
service charge should be $25. Another stated that increases ranging
from 500 percent to 1,450 percent appeared excessive. Finally, one
comment stated that the proposed service charges were too low, and
suggested $275 for the issuance of a crossing permit, $2,045 for the
transfer of a grazing preference, and $250 for the cancellation and
replacement of a grazing fee billing, in order to shift the full cost
of those services to permittees.
Some comments opposed service fee increases for a number of
reasons. For example, they stated that increases would not improve
working relations between BLM and permittees, would not address legal
issues or administrative inefficiencies, and would be too expensive for
operators to afford. One comment stated that BLM should reduce the
costs of providing services rather than increasing service charges.
Some comments objected specifically to the proposed service charge for
issuance of a crossing permit. One comment stated that crossing permits
merely authorize an operator access to his own allotment, and many such
permits are consistent with historical usage and/or consent of
neighboring operators. Some comments supported the increases for
preference transfers and for canceling and replacing a grazing bill,
but stated that increasing the service charge for crossing fees would
provide operators a disincentive to report a need to cross lands
occupied by others. These comments stated that BLM needs to know when
operators are crossing public lands occupied by others, that there are
safety concerns when operators trail livestock along highways, and that
there may be concerns about insurance.
We believe the proposed service charges will not damage working
relationships with permittees, will contribute to the goal of covering
a portion of administrative costs, and will not likely lessen BLM's
goal of protecting rangelands. We do not believe that operators will
avoid contacting BLM for a crossing permit in order to avoid the
service charge, since this could lead to a trespass violation with
serious consequences. We also believe that the proposed service charges
are reasonable, as required by Section 304(a) of FLPMA, 43 U.S.C.
1734(a). They range from $50 to $145, reflecting the processing costs
associated with transactions that require BLM officers to engage in
analysis and decisionmaking activities. Issuing a crossing permit
involves analysis of terms and conditions for the grazing use that is
incidental to a crossing. The transfer of a grazing preference requires
findings with respect to base property, qualifications, and other
matters. The $50 service charge for the cancellation and replacement of
a grazing fee billing will be assessed only when a BLM officer must
change a billing notice because a permittee or lessee files an
application to change grazing use after BLM has issued billing notices
for the affected grazing use. That service charge can be avoided
altogether merely by applying to change grazing use, in those cases
where a permittee knows of the grazing use change, before BLM issues
the grazing fee billing for grazing use specified in the permit or
lease. This typically occurs 30 days before the first grazing begin
date listed on the permit or lease and 30 days after BLM has provided
the operator a ``courtesy grazing application'' that lists grazing use
shown on the permit or lease and invites application for changes in
this use as may be needed or desired by the permittee or lessee.
Additionally, BLM will not assess the service charge if, after a
grazing fee billing is issued, BLM changes the grazing fee bill because
we have approved an operator's grazing application not to use all or a
portion of his preference for reasons of resource conservation,
enhancement, or protection.
Some comments suggested that BLM add a service charge of $50 to $75
for filing a protest, and $100 to $150 for filing an appeal, in order
to reimburse BLM for a portion of the initial costs of processing
protests and appeals. One comment supported the proposed service
charges, and suggested that BLM add a service charge of about $50 to
accompany applications for cooperative agreements or permits for range
improvements, stating that permittees and lessees would become more
serious about implementing a project, having more invested in it.
Instituting additional service charges is not necessary or
appropriate at this time. Parties, including permittees and lessees,
may be discouraged from filing legitimate protests or appeals of
grazing decisions if they have to pay service charges. Further,
aggrieved parties do not generally have to pay service charges in order
to seek administrative remedies in other BLM programs. Applications for
range improvements should not be subject to service charges because
range improvements are useful to BLM in rangeland management, and
because the public receives more palpable benefits from range
improvements than they do from crossing permits, transfers of grazing
preference, or the cancellation and replacement of a grazing fee billing.
One comment stated that, instead of increasing service charges, BLM
should increase grazing fees to fair market value because such fees
would eliminate the need for the proposed service charges.
As previously stated, grazing fees and related issues are not being
addressed in this rulemaking. BLM believes the proposed changes in
service charges respond to the increasing need for cost recovery.
Further, it would not be fair to operators who do not need to transfer
their preference, obtain a crossing
[[Page 39484]]
permit, or ask for a rebilling, to subsidize those who do.
One comment urged BLM to clarify when BLM or the permittee will
absorb charges for grazing fee billings under certain circumstances,
for example, when permittees take temporary nonuse at the suggestion of
BLM due to continuing drought.
Section 4130.8-3(b) in the proposed rule provides that BLM will not
assess a service charge when BLM initiates the action. That provision
is adopted as proposed. Thus, if BLM suggests temporary nonuse due to
drought, there will be no service charge.
One comment noted the absence of specific information on the
proposed increases in service charges.
In response to this concern, we included in the final EIS
additional information on current average costs associated with the
proposed service charges. Specific information on the average cost of
issuing billings, free use permits, exchange of use permits, trailing
permits, temporary non-renewable permits, and the average cost of
processing preference transfers including issuance of a permit to a
preference transferee with all NEPA compliance, ESA consultation, and
protests and appeals, and data management support including GIS costs
during Fiscal Year 2003, is found in Section 2.2.15 of the final EIS
Section 4140.1 Acts Prohibited on Public Lands
In the proposed rule, we amended the prohibition of the placement
of supplemental feed on public lands in section 4140.1(a)(3) to make it
clear that the prohibition applies if the placement of supplemental
feed was without authorization or contrary to the terms and conditions
of the permit or lease.
We also revised section 4140.1(b)(1)(i) to state that it is a
prohibited act to graze without a permit or lease or other grazing use
authorization and timely payment of grazing fees. We also amended
paragraph (b) to make it clear that the acts listed in the paragraph
are prohibited on all BLM-administered lands, rather than that the acts
are prohibited if they are related to rangelands.
We amended section 4140.1(c) to limit its application to prohibited
acts performed by a permittee or lessee on his allotment where he is
authorized to graze under a BLM permit or lease. It pertains to
violations of certain Federal or State laws or regulations, including
placement of poisonous bait or hazardous devices designed for the
destruction of wildlife; pollution of water resources; and illegal
removal or destruction of archeological or cultural resources. It also
pertains to the violation of specific laws and regulations including
the Bald and Golden Eagle Protection Act, ESA, and any provision of the
regulations concerning wild horses and burros, and to the violation of
state livestock laws or regulations relating to branding and other
livestock related issues. We retained the provisions that allow us to
withhold, suspend, or cancel all or part of a grazing permit if the
lessee or permittee is convicted of violating any of the prohibited
acts in paragraph (c).
Many comments supported the proposed changes to the section on
prohibited acts. They agreed that BLM should only enforce actions
against permittees if the violations occur while grazing on their
permitted allotments. Many comments stated that the proposed changes
will promote better cooperation with operators.
Many comments opposed the changes in section 4140.1 that applied
civil penalties only if the acts prohibited took place on the allotment
that was subject to the permit or lease. They stated that permittees
and lessees should be subject to civil penalties set forth in section
4170.1-1 for performance of prohibited acts in section 4140.1 on any
public lands, not just those public lands that are part of their
grazing permit or lease. The comments gave a number of reasons for this
view. They stated that this policy seems inconsistent with the stated
intent of the rule to promote strong partnerships with good stewards of
the land by development of simple and practicable ways to attain our
shared purpose of sustaining open space, habitat, and watershed values;
permittees should be held accountable and responsible for all local,
state, and Federal resource-related laws; it weakens BLM's enforcement
of terms of its own leases and permits; it has a negative effect on
wildlife and their habitats and could lead to the degradation of
resources; no analysis is provided for the validity of or necessity for
the provision; it makes it easier for permit holders to violate
environmental laws without fear of repercussions to their permit; it
should require tougher enforcement, not more lenient enforcement; a
convicted criminal should not be able to hold a grazing permit; and BLM
should discontinue leasing to individuals who violate BLM requirements
on their allotments.
We intend the change in this provision to clarify whether or not
the performance of the prohibited act must occur on the allotment for
which the permittee or lessee has a BLM permit or lease. There is also
some concern that some of the laws and regulations identified in this
category of prohibited acts could result in penalties against
permittees and lessees that are unfair because they involve a secondary
penalty for a violation of a law or regulation whose primary
enforcement is by another agency, with its own separate statutory
enforcement and penalty authorities. BLM permittees and lessees are
still accountable and responsible for violations of local, state, and
Federal resource-related laws, since they are subject to these other
penalties for violations of the acts listed in section 4140.1(c). These
other penalties will still serve as a deterrent to violation of the
prohibited acts. In addition, if the violation occurs on the allotment
of the BLM permittee or lessee, that person is subject to the penalties
in subpart 4170. The amendment in section 4140.1(c) has no effect on
enforcement of violations occurring on the permittee's or lessee's
allotment. BLM has not frequently had need to apply this provision of
the grazing regulations in the past. A prospective permittee or lessee
must meet the requirements stated in section 4110.1 and have a
satisfactory record of performance under section 4130.1-1(b). The
permittee or lessee must have substantial compliance with the terms and
conditions applied to their grazing permit or lease and with the rules
and regulations applicable to that permit or lease. The overall purpose
for our amendments of the grazing regulations, including those in this
section, is to develop strong relationships with all partners. As to
whether or not a convicted criminal should be able to hold a permit, as
we stated earlier, it is not Federal or BLM policy to exclude a person
who has been convicted of a crime, paid his penalty or served his
sentence, and been rehabilitated, from gainful employment.
Comments stated that the rule should not prohibit failure to make
grazing use as authorized for 2 consecutive fee years, saying only that
the provision does not make sense. A second comment recommended that
BLM amend the provision that prohibited failure to make substantial
grazing use as authorized for two consecutive fee years. The comment
cited the proposed rule provision that states ``the BLM may deny nonuse
if the permittee cannot justify that nonuse is for resource
stewardship,'' and recommended that the rule provide a clear exception
if nonuse would be beneficial for listed or sensitive species and their
habitats.
Another comment stated that the rule should not cancel permitted
use for failure to make substantial use as authorized or for failure to
maintain or
[[Page 39485]]
use water base property because threats to cancel use present an
obstacle to developing a financial plan acceptable to a lender.
The prohibition of failing to make grazing use as authorized for 2
consecutive fee years ensures that those who acquire grazing permits or
leases will use them for the purposes intended, namely to graze
livestock. Originally, the purpose of this regulation was to discourage
acquisition of base property and grazing permits or leases by land
speculators whose primary business was not livestock-related. It may
now also be applicable to those who acquire ranch base property and a
permit or lease, yet do not graze so that their permitted allotments
are ``rested'' from grazing, ostensibly realizing conservation
benefits. Failing to make grazing use as authorized for 2 consecutive
fee years would occur when a permittee or lessee does not obtain BLM
approval for nonuse of his permit or lease and does not graze livestock
as authorized by his permit or lease for 2 years in a row.
BLM believes the rule, and the proposed changes, are rational and
do not constitute any threat to operators' finances. Failure to make
substantial grazing use as authorized for 2 years, and failure to
maintain or use water base property, are listed as prohibited acts so
that BLM can ensure that permittees are grazing at authorized levels.
This helps ensure accurate monitoring and data collection, and in
general supports management of the public lands. The provision is also
helpful in recognizing whether someone does not intend to graze
livestock. Such recognition can be applicable to BLM's implementation
of FLPMA, which designates livestock grazing as a ``principal or major
use'' of public lands. 43 U.S.C. 1702(l).
No amendment of this provision is necessary. Under the final rule,
the authorized officer may grant nonuse for the number of years needed
to provide for natural resource conservation, including threatened and
endangered species. The present regulations that limit BLM's ability to
allow for annual temporary nonuse for more than 3 years were changed.
Under the final rule, temporary nonuse can be approved annually for
longer than 3 years. BLM believes it is important to require an annual
request for temporary nonuse. The annual review process allows BLM to
assess the reasons for the request and to gauge the success of range
recovery (if temporary nonuse was issued for resource conservation
purposes). To do otherwise could lead to less active BLM oversight and
management of public lands. The provision that prohibits failure to
make substantial grazing use as authorized for 2 consecutive years
applies to situations where a nonuse application has not been approved.
Several comments stated that BLM should not make it a prohibited
act to place supplemental feed on public lands without authorization,
asserting that BLM has no personnel who are knowledgeable in livestock
nutrition.
The prohibition on placing supplemental feed on public lands
without authorization is already stated in the regulations; it is not
new in this rule. This rule does, however, add a reminder that
information regarding the authorization of placement of supplemental
feed on public lands may be in the terms and conditions of the permit
or lease, and those must be adhered to as well. We disagree with the
assertion that BLM has no personnel knowledgeable in livestock
nutrition. One of the intents of the prohibited act on placing
supplemental feed on public lands without authorization is to manage
distribution of livestock for improved livestock and rangeland
management on an allotment. The requirement for BLM authorization of
supplemental feeding should reduce the risk of spread of noxious weeds
and other undesirable exotic plants that could be introduced by
supplemental feeding. Also, supplemental feeding can influence diet
selection of the livestock among established plant species, and thus
potentially change plant species composition on the allotment.
Comments stated BLM should not make it a prohibited act for a
permittee to violate Federal or state laws relating to placement of
wildlife destruction devices, pesticide application or storage,
alteration or destruction of stream courses, water pollution, illegal
take, harassment or destruction of fish and wildlife, or illegal
removal or destruction of archaeological resources. The comment stated
that these provisions will tend to remove permittees from Federal lands.
BLM disagrees entirely with the implication of the comments that
unless permittees are allowed to perform these acts, they will be
driven from public lands. The vast majority of BLM permittees and
lessees do not perform these acts and yet are able to maintain
commercial livestock enterprises that depend upon grazing use of public
lands. Such acts can have a negative impact on the natural resource
values of the allotment.
One comment stated that BLM should not make it a prohibited act for
a permittee to violate state brand laws because BLM does not have
authority to enforce state brand laws.
BLM agrees it does not have the authority to enforce state brand
laws. A permittee or lessee who violates state brand laws would be
subject to state penalties enforced by the state, as well as the
Federal penalties set forth in this rule. BLM believes that violation
of state brand laws is a significant infraction that warrants the
penalties as stated in the grazing regulations. While states enforce
their respective brand laws, compliance with such laws is also an
integral part of a permittee's operations on public lands, and
facilitates BLM's own management of public lands. Section
4140.1(c)(1)(ii) makes it clear that being convicted under the state
enforcement authority is a condition precedent for being found in
violation of this prohibited act. This provision will not be removed
from the rule.
Several comments recommended that BLM adopt as a prohibited act the
provision set forth in Alternative 3 of the EIS: ``Failing to comply
with the use of certified weed-seed free forage, grain, straw or mulch
when required by the authorized officer. Comments expressed concern
about the adverse impacts of invasive plants on native ecosystems, and
stated that such a provision would contribute to the ongoing efforts to
control the alarming invasion and spreading of exotic and noxious plant
species and would benefit wildlife and watersheds.
BLM has decided not to pursue adding a prohibited act to section
4140.1(b) addressing non-compliance with weed-seed free forage
requirements on public lands at this time. We agree that promoting the
use of weed-seed free forage products on public land will help control
the introduction and spread of invasive and noxious plants. BLM will
continue to develop and implement a nationwide weed-seed free forage,
grain, and mulch policy for the public lands, working closely with
state and local governments. We will also continue to implement our
Partners Against Weeds strategy plan, which includes measures for
controlling and preventing the spread and introduction of noxious and
invasive weeds.
One comment from a state department of agriculture urged BLM to
remove all of section 4140.1(c) of the proposed rule. The comment
stated that, if a permittee or lessee were convicted of a crime and
paid the consequences under that conviction, any additional penalties
imposed by BLM or another entity would be arbitrary, and that there are
other ways to encourage good stewardship of the public lands.
The intent of section 4140.1(c), as amended by this rule, is to
help enforce provisions of prohibited acts that would
[[Page 39486]]
affect the integrity of natural resources on the allotment on which the
permittee or lessee has a grazing permit or lease. Stewardship of the
land includes protection of endangered species and wildlife, protection
from pollution by hazardous materials, protection of streams and water
quality, and protection of cultural resources. In this rule, as
explained above, we have limited the scope of paragraph (c) to actions
on the allotment in question.
One comment suggested reorganizing section 4140.1(c) of the
proposed rule so that the Bald and Golden Eagle Protection Act (BGEPA)
and State livestock laws and regulations are not contained in the same
numbered paragraph (3), even though they are in separately numbered
subparagraphs (i) and (ii). The comment stated that there was no nexus
that justified their designation together under paragraph (3).
We have not adopted this comment in the final rule. There is no
basis for changing the organization of section 4140.1(c)(3). There is
no qualitative difference between numbering the references to the BGEPA
and the state livestock laws (c)(3) and (c)(4)), respectively, and
numbering them (c)(3)(i) and (c)(3)(ii). The nexus between them, if any
were needed, is that the same penalty applies.
One comment stated the proposed rule implies that a permittee
convicted of violating the BGEPA on any lands outside his BLM grazing
permit boundary would not risk loss of grazing privileges. The comment
noted that the BGEPA (16 U.S.C. 668(c)) provides specifically for
revocation of permits for violations of the BGEPA regardless of where
the violation occurs (i.e., the violation does not have to occur within
the grazing permit boundary), and stated that the grazing rule should
be consistent with the BGEPA.
The BGEPA provides authority for the Director of BLM to impose a
penalty of immediate cancellation of leases, licenses, permits, or
agreements authorizing livestock grazing on Federal lands for
violations of the BGEPA. The statute, however, leaves the decision of
whether to cancel a lease, license, permit, or agreement to BLM's
discretion. The final rule does not alter BLM's discretionary authority
granted under the BGEPA, but would clarify and limit BLM's enforcement
authority under its grazing regulations by limiting its application to
prohibited acts performed by a permittee or lessee on his allotment
where authorized to graze under a BLM permit or lease. BLM permittees
and lessees are still accountable and responsible for violations of the
BGEPA, which carries civil and criminal penalties other than permit or
lease cancellation (16 U.S.C. 668(a) and (b)). These other penalties
will still serve as a deterrent to violation of the BGEPA on areas
other than the allotment where the permittee or lessee is authorized to
graze.
Another comment expressed the broader concern that the rule does
not provide for revocation of a permit when a prohibited act occurs
outside of the grazing permit boundary. The comment stated that this
contradicts the stated objectives of the proposed rule: To improve
cooperation, promote practical mechanisms for assessing rangeland
change, and enhance administrative efficiency. Further, the comment
stated that the rule may result in more livestock trespass violations
on Fish and Wildlife Service refuge lands. The comment noted that the
current rule, which allows BLM to determine whether cancellation or
suspension of a permit is appropriate, likely helps deter trespass
violations.
Finally, the commenter stated that the FEIS should report the miles
of boundaries shared by BLM grazing allotments and refuge land and
assess the implications of the proposed rule for the FWS mission.
BLM believes it is appropriate that penalties applied to grazing
permits be directly linked to the abuse of the permission being granted
by the permits. In BLM's view, the most effective and direct deterrent
to livestock trespassing onto refuge lands or any other Federal lands
is for the managers of those lands to take action directly against the
violator. This is preferable to relying upon ``secondary'' sanctions
against the violator's BLM permit.
BLM does not disagree that the threat of additional penalty against
an operator's BLM permit for violation of another Federal or state
agency's regulations has deterrence value. Violations of Federal and
state law and regulation already carry penalties. To include an
additional penalty in the grazing regulations unintentionally and
unfairly treats grazing permittees inequitably. The 1995 regulations
single out a particular use for additional penalty to which other
violators are not subject. We do not expect that the proposed change
will have any effect on lands adjacent to BLM-managed lands.
Furthermore, as noted above, existing law should be sufficient to
protect against trespass. BLM remains committed to cooperating with
other Federal and state land managers on a case-by-case basis to
address incidents of livestock grazing trespass.
Finally, the final rule does not prevent BLM from penalizing a
permittee if the permittee unlawfully trespasses on another allotment.
Nor does the final rule prevent BLM from penalizing a permittee by
altering his permit if he is convicted of destroying government
property on Federal lands other than on his allotment (section 4170.1).
One comment suggested that the regulations should provide that any
grazing use that was canceled as a penalty is available to other applicants.
Grazing permits and leases that are canceled due to noncompliance
with terms and conditions of a permit may be available under section
4130.1-1 to other qualified applicants who apply for grazing use on
that allotment.
Subpart 4150--Unauthorized Grazing Use
Section 4150.3 Settlement
In the proposed rule we amended section 4150.3 by adding a new
paragraph (f) specifying that if a permittee or lessee obtains a stay
of a decision that demands payment or cancels or suspends a grazing
authorization, BLM will allow him to graze under his existing
authorization pending resolution of the appeal.
In the final rule, we amended paragraph (f) to make it clear that
``this part'' refers to all of part 4100, for the benefit of readers
who may not be familiar with CFR conventions. We also amended this
paragraph to make it clear that BLM will allow grazing pending the
completion of the administrative appeal process, rather than judicial
appeals.
A few comments addressed this section of the proposed rule. One
urged BLM to change the regulations to provide that a nonwillful
livestock grazing use violation can only occur upon a finding that a
volitional act and/or an act of negligence by the permittee or lessee
(or an affiliate) caused the violation. It stated that section 4150.3
should provide that an act of negligence by the permittee or lessee is
required as a precedent to a finding of nonwillful livestock grazing
trespass, so that BLM does not cite permittees and lessees for trespass
when, for example, livestock stray from their authorized pasture
because another party left a gate open.
BLM disagrees with this view. Nonwillful unauthorized grazing use
occurs when the operator is not at fault, such as when cattle stray
from their authorized place of use because a third party left a gate
open. In contrast, willful unauthorized grazing use occurs, for example,
when the use results from a volitional act and/or act of negligence
[[Page 39487]]
committed by a permittee, lessee, or affiliate. The grazing regulations
continue to provide that, under certain circumstances, nonwillful
violations are eligible for nonmonetary settlement. It also remains a
prohibited act under the grazing regulations for any person to fail to
re-close any gate or livestock entry during periods of livestock use.
Another comment urged that we add language to section 4150.3(e) to
clarify that BLM cannot withhold a grazing authorization unless: (a)
Attempts at settlement have failed; (b) BLM has issued a decision that
finds there has been a violation, demands payment for the amounts due,
and provides that grazing will not be authorized until payment has been
received; and (c) any petition for stay of such a decision has been
denied. The comment stated that some BLM offices have been withholding
grazing authorizations based on allegations of trespass that have not
been finally determined upon review, and that this is contrary to legal
administrative procedure.
BLM agrees that the regulations require clarification on this
matter. Some BLM field staff persons have erroneously interpreted
section 4150.3(e) to mean that they must refuse to process grazing
applications of and issue grazing fee billings to an alleged trespasser
during the period after BLM has issued a decision demanding payment but
before the decision has been finally determined upon review. The
proposed rule included new Sec. 4150.3(f) providing that, should a
decision issued under section 4150.3(e) that demands payment for
outstanding unauthorized use fees and penalties be administratively
stayed, BLM will authorize grazing under the regulations pending
resolution of the appeal. BLM may not withhold authorization to graze
under this section unless BLM has issued a decision under subpart 4160
demanding payment for the amount due, the decision is in effect, and
the amount has not been paid.
One comment urged BLM to provide in the regulations for mandatory
cancellation or suspension of grazing authorizations, or denial of
applications for grazing use, if permittees or lessees fail to pay
trespass fees and fines that BLM finds are due under section 4150.3, so
that the permittee or lessee does not unduly evade or delay payment.
The regulation referenced by the comment provides that ``[t]he
authorized officer may take action under subpart 4160 to cancel or
suspend grazing authorizations or to deny approval of applications for
grazing use until such amounts have been paid.'' This regulation gives
BLM permission to take action under 4160--in other words, issue a
grazing decision--in this circumstance. Subpart 4160 requires BLM to
issue a grazing decision, with right of protest and appeal, to cancel
or suspend grazing authorizations or to deny approval of applications
for grazing use. BLM sees no need to mandate that failure to pay
trespass fees will result in suspension. Facts and circumstances in
each trespass case are unique, and BLM prefers to retain its discretion
to determine when it would be appropriate to cancel or suspend a permit
or lease.
Subpart 4160--Administrative Remedies
Section 4160.1 Proposed Decisions
Existing section 4160.1(c) provides that an authorized officer may
elect not to issue a proposed decision where he has made a
determination in accordance with section 4110.3-3(b) or section
4150.2(d), which allow under certain circumstances the authorized
officer to make a decision effective upon issuance or a date specified
in the decision. The final rule amends section 4160.1(c) to reflect the
addition of section 4130.6-2(b) in this rule, and the addition of
section 4190.1(a) in a previous rulemaking (68 FR 33804, June 5, 2003).
The final rule now includes cross-references to all BLM grazing
regulations allowing decisions to be made effective upon issuance or a
date specified in the decision.
We also proposed to amend this section to provide that a BA or BE
that BLM prepares for purposes of the ESA (16 U.S.C. 1531-1544) is not
a proposed decision for purposes of a protest to BLM, or a final
decision for purposes of an appeal to OHA under the TGA. Pursuant to
the Secretary's supervisory authority, this provision prospectively
supersedes the decision in Blake v. BLM, 145 IBLA 154, 166 (1998),
aff'd, 156 IBLA 280 (2000), which held that the protest and appeal
provisions of 43 CFR subpart 4160 apply to a proposed change in a
permit or lease evaluated in a BA or BE.
Proposed section 4160.1(d) provided that a BA or BE prepared for
purposes of an ESA consultation or conference is not a decision for
purposes of protest or appeal. The final rule clarifies the proposed
rule by adding the words ``by BLM'' after the word ``prepared.''
Comments opposed this section and stated that it effectively
eliminates all administrative appeals of grazing permit or lease terms
and conditions that result from a BA and related BO. Other comments
said that where the terms and conditions of a grazing lease or permit
were required by a BO, the terms and conditions should be subject to
appeal if they were substantially the same terms and conditions
submitted by BLM in a BA or BE. Both the TGA, 43 U.S.C. 315, and the
APA, 5 U.S.C. 551 et seq., provide for administrative appeals, comments
noted.
Other comments pointed out that proposed section 4130.3(b)(1)
presented similar problems. That section states that permit or lease
terms and conditions may be protested and appealed unless they are not
subject to review by OHA. This would include grazing permit or lease
terms and conditions required as a result of ESA consultation. Comments
opposed this provision, arguing that it denied permittees and members
of the public opportunities to correct mistakes in an agency BE.
Regulations at 50 CFR 402.02 and 402.12 make it clear that a BA or
BE is an intermediate step that BLM will take in assessing its
obligations under the ESA, and thus is not subject to appeal. A BA or
BE does not grant or deny a permit application, modify a permit or
lease, or assess trespass damages, which are examples of BLM decisions
that are subject to appeal.
A BA or BE is not a proposed decision for purposes of a protest to
BLM, or a final decision for purposes of an appeal to OHA under the
TGA. The final rule at section 4160.1(d) prospectively supersedes a
requirement imposed by IBLA in Blake v. BLM, 145 IBLA 154 (1998),
aff'd, 156 IBLA 280 (2002), that BLM issue a BE or BA as a proposed
decision that may be protested and appealed (as if it were a grazing
decision), even though a BE or BA does not take action, require action,
or implement anything.
As explained in the preamble to the proposed rule at 68 FR 68464, a
BA or BE is a tool that FWS and NOAA Fisheries use to decide whether to
initiate formal consultation under Section 7 of the ESA. Formal
consultation results in a BO prepared by FWS. TGA Section 9 hearings
are administered by OHA, a body that has been delegated authority
regarding public land use decisions, but has not been delegated
authority over FWS actions. See Secretarial Memorandum of January 8,
1993 (Secretary Lujan); Secretarial Memorandum of April 20, 1993
(Secretary Babbitt). The ESA does not require or authorize the creation
of an administrative appeal procedure for biological opinions, and
instead authorizes direct suit in a Federal court. 16 U.S.C. 1540(g). A
BO may be challenged in Federal court under the APA. Bennett v. Spear,
520 U.S. 154,
[[Page 39488]]
178 (1997). Thus, direct legal remedies are already in place and OHA
has not been delegated administrative review authority over BOs issued
by FWS.
OHA's review is limited to the merits of the BLM decision and can
not extend to the validity of the BO findings or the FWS procedures
used to produce the opinion. This final rule does nothing to change
this longstanding policy, which is summarized in Secretary Lujan's
memorandum as follows: ``In summary, OHA has no authority under
existing delegations to review the merits of FWS biological opinions.
Any review of biological opinions would necessarily be limited to the
federal district courts pursuant to Section 11(g) of the ESA. The
longstanding administrative practice of not providing OHA review of the
biological determinations of the FWS under the ESA, the specific
remedies provided by the ESA itself, and the need for expedited
treatment, all militate against a change to the existing delegations.''
One comment stated that BLM should clarify exactly which terms and
conditions in a permit or lease resulting from a biological opinion may
be appealed to the Office of Hearings and Appeals (OHA).
Section 4130.3(b)(1) of the proposed rule included a provision that
specified that the terms and conditions mandated by a biological
opinion are not subject to review by OHA. BLM intends to drop this
provision in the final rule. The regulatory language in the proposed
rule at section 4130.3-3(b) reflected Departmental policy as explained
in two 1993 Secretarial memoranda. These memoranda state that the OHA
does not have the authority to review biological opinions. Such review
is provided by the Federal Courts through Section 11(g) of the ESA.
Although we have removed proposed paragraph (b)(1) in the final rule,
BLM is not changing its longstanding policy. BLM is dropping proposed
paragraph (b)(1) because the Secretarial memoranda are sufficient.
Another comment stated that an appeal to OHA should not be allowed
as to stipulations resulting from interagency programmatic
consultations, or from interagency coordination intended to substitute
for formal consultation. The comment stated that if these stipulations
could be removed through appeal, it may be necessary to re-initiate
formal consultation or renegotiate interagency agreements, which would
negate the streamlining efforts by both BLM and the FWS.
Issues of OHA jurisdiction are better addressed in the OHA
regulations or through Secretarial directives. BLM must avoid
jeopardizing the continued existence of any listed species, and will
formally consult with the FWS and the National Marine Fisheries Service
whenever appropriate.
One comment suggested that the rule be amended at section 4160.1(d)
to state that, although biological assessments are not decisions that
can be protested or appealed, the facts and findings of biological
assessments may be challenged in a grazing protest or appeal.
Section 4160.1(d) states that a BA prepared for the purposes of an
ESA consultation or conference is not a decision for purposes of
protest or appeal. This provision ensures consistency with the ESA
regulations, such as 50 CFR 402.02 and 402.12, which define BAs as
documents that evaluate the potential effects of an action or
management proposal on listed or proposed species and designated or
proposed critical habitat. BAs are not documents that authorize an
action. Therefore, BAs cannot be protested or appealed. BLM believes
that the language in the final rule at section 4160.1(d) is clear and
appropriate in this regard, and we have not adopted the comment in the
final rule.
One comment stated that whether grazing may continue while an
administrative stay is in effect is a decision that should be based on
what is best for the resource. A similar comment stated that
maintaining or improving rangeland health should be the overriding
concern in grazing management, including how the range is managed
during appeal. Another comment asked specifically that BLM clarify how
threatened and endangered species would be protected when grazing
continues during OHA consideration of an appeal, and how any loss of
species or habitat would be remedied once the appeal is resolved.
The proposed rule recognizes the continuing nature of grazing
operations and is consistent with the Administrative Procedure Act
requirement that ``a license with reference to an activity of a
continuing nature'' does not expire until an agency makes a new
determination (5 U.S.C. 558). In light of this, section 4160.4(b)
provides that grazing may continue when a decision affecting a grazing
permit or lease has been stayed by OHA. BLM believes that actively
managing the use of the rangelands and not automatically halting
grazing when a stay is issued is consistent with BLM's obligations
under FLPMA and the TGA.
In response to comments, BLM plans to limit the application of
paragraph (b) to certain types of grazing decisions--
? Those that cancel or suspend a permit or lease, or change
any term or condition during its current term or renew a permit or lease,
? Those that issue or deny a permit or lease to a preference
transferee; or
? Offer a preference transferee a permit or lease with terms
and conditions that differ from those in the previous permit or lease.
In addition, BLM is entirely removing proposed section 4160.4(c)
from the rule.
BLM agrees that the condition of the rangeland and protection of
species listed under the ESA must be considered in making grazing
decisions and in instances where there is a stay of a decision. BLM
takes these matters into account in making grazing decisions and, when
necessary to protect resources or species, can issue a decision that is
effective immediately (section 4110.3-3(b)(2) in the final rule). The
IBLA also has the flexibility to issue a stay in whole or in part so
that resources and species may be protected (43 CFR 4.21(b)(4)).
Section 4160.37 Final Decisions
We proposed to amend section 4160.3 by moving the discussion of
appeal procedures in paragraph (c) to, and combining it with, existing
section 4160.4 as a new paragraph (a).
We also moved and revised paragraphs (d) and (e) of section 4160.3,
regarding grazing use when OHA has granted a stay of a final grazing
decision, to section 4160.4.
In the final rule, we have added necessary cross-references to
paragraph (c) to conform the paragraph to changes made in other
sections in this rule and in a previous final rule (68 FR 33804, June
5, 2003). The final rule now includes cross-references to sections
4110.3-3(b), 4130.6-2(b), 4150.2(d) and 4190.1(a), all of which allow
under certain circumstances for a decision to be made effective upon
issuance or a date specified in the decision.
Comments urged that BLM amend section 4160.3 so that the authorized
officer cannot make decisions adverse to the livestock grazing
permittee or lessee effective immediately unless he has found after a
hearing on the record that the current authorized grazing use poses an
imminent likelihood of irreparable resource damage. The comment also
recommended that BLM be barred from making a decision effective
immediately before the hearing unless the authorized officer declares
an emergency, after having applied the IBLA standards for a
[[Page 39489]]
stay found in 43 CFR 4.21(b)(1), in which case the decision would be in
effect only for the 30-day period allowed for filing an appeal. In
addition, the comment recommended retaining the consultation
requirements already proposed for section 4160.1. The comment contended
that BLM grazing decisions over the past 10 years have not been based
on state of the art rangeland studies, and that the OHA regulations
misplace the burden of proof on appellants in justifying stays.
We have not amended the section 4160.3 in the final rule in
response to these comments. Consultation, cooperation, and coordination
with affected permittees and lessees are already required before active
use can be decreased. See 43 CFR 4110.3-3. Further, any reduction in
active use must be issued as a proposed decision, subject to a possible
protest before it is finalized, unless the authorized officer documents
the emergency-type situations listed in section 4110.3-3(b)(1). A
decision may also be appealed after it is finalized, and a stay of the
decision may be sought. Thus, the current requirements provide ample
opportunity for affected permittees and lessees to participate in the
decisionmaking process. Adding a pre-decisional hearing based on the
OHA stay standards would unnecessarily limit BLM's ability to respond
in a timely manner to changing range conditions.
A number of comments addressed proposed section 4160.3. That
section provided that, notwithstanding section 4.21(a), BLM may provide
that a final decision shall be effective upon issuance or on a date
established in the decision when BLM has made a determination under
sections 4110.3-3(b) or 4150.2(d). (The latter two provisions authorize
final decisions effective upon issuance where reductions in permitted
use or temporary closures are necessary.)
Comments expressed the opinion that BLM decisions, as a general
matter, should be suspended pending resolution of an appeal. Comments
acknowledged that special circumstances could apply, such as the
likelihood of irreparable resource damage, to render a decision
effective during this time.
The comments, if adopted, would, in effect, revive the provisions
of section 4.21(a) as they existed before its amendment on January 19,
1993, at 58 FR 4939. Prior section 4.21(a) provided that ``except as
otherwise provided by law or other pertinent regulation, a decision
will not be effective during the time in which a person adversely
affected may file a notice of appeal, and the timely filing of a notice
of appeal will suspend the effect of the decision appealed from pending
the decision on appeal.'' (A grazing regulation similar to prior
section 4.21(a) was changed in 1995.) This prior section was criticized
because it allowed the filing of an appeal to halt agency action
without regard to the merits of the appeal.
Current section 4.21 sets forth a general rule that suspends an
agency decision for the 30-day period during which appellant may file
an appeal and request for stay. An appellant seeking a stay must
demonstrate, among other factors, the likelihood of success on the
merits of the appeal. We believe this to be a superior rule. It allows
agency decisions to go into effect reasonably quickly, but allows for a
stay of such decisions upon a showing as to the likelihood of success
on the merits and other requirements under section 4.21.
Proposed section 4160.3 acknowledges the vitality of current
section 4.21(a) even as it sets forth an exception to its terms.
Comments in favor of a general rule that would suspend a decision
during appeal have not been adopted in the final rule.
Section 4160.4 Appeals
The proposed rule amended section 4160.4 by adding language
clarifying the extent, if any, that grazing activities are permissible
after OHA grants a stay of a grazing decision. We are adopting the
proposed rule with revisions. We are also adopting regulations at
4130.6-2(b) that address grazing use following a stay of decisions
regarding annual or ephemeral use and temporarily available forage.
The current regulations, at section 4160.3(d) and (e), specify a
number of variables that determine the extent of grazing that will be
allowed between the grant of an administrative stay and the resolution
of an administrative appeal. For example, three of the variables in the
current regulations are whether grazing was authorized in the preceding
year, whether the decision is ``regarding an application for grazing
authorization,'' and whether ``grazing use in the preceding year was
authorized on a temporary basis under section 4110.3-1(a).'' 43 CFR
4160.3(d). If only the first two variables are present, the applicant
may continue grazing use at the same level as the preceding year.
However, if all three variables are present, the regulations imply (but
do not expressly provide) that ``grazing use shall be consistent with
the final decision pending the Office of Hearings and Appeals final
determination on the appeal.'' Id.
Proposed section 4160.4 described the effects of a stay granted by
OHA on a grazing decision under appeal, i.e., what happens when OHA
stays implementation of a grazing decision. In three types of cases
identified at paragraphs (b)(1), (2), and (3), the proposed rule
provided that a rancher's immediately preceding authorization and any
terms and conditions therein will not expire, and the permittee,
lessee, or preference applicant may continue to graze under the
immediately preceding grazing authorization, subject to the stay order
and section 4130.3(b). Proposed paragraphs (b)(1), (2), and (3)
described those cases that (1) change the terms and conditions of a
permit or lease during the current term; (2) offer a permit or lease to
a preference transferee with terms and conditions that are different
from the permit or lease terms and conditions that are most recently
applicable to the allotment or portion of the allotment in question;
and (3) renew a permit or lease with changed terms and conditions.
The proposed rule also described four types of cases at paragraphs
(c)(1), (2), (3), and (4) that call for BLM, upon the grant of a stay
by OHA, to authorize grazing consistent with the final decision under
appeal. Briefly stated, proposed paragraphs (c)(1), (2), (3), and (4)
described those cases that (1) modify a permit or lease because of a
decrease in available acreage; (2) affect an application for ephemeral
or annual rangeland; (3) affect an application for forage temporarily
available under section 4110.3-1(a); and (4) affect an application for
a permit or lease not made in conjunction with a preference transfer.
Comments expressed support for proposed section 4160.4(b), stating
that, in effect, the immediately preceding authorization would not be
terminated, but would be extended for purposes of the stay. This is
consistent with a stay allowing the status quo to continue, comments
stated, and allows for continuity of operations when grazing decisions
are appealed. Other comments thought that our use of the terms
``authorized'' and ``authorization'' in the proposed rule was confusing
and should be clarified. We have clarified section 4160.4(b) in the
final rule to reflect these comments. In the final rule, we state that,
upon OHA's issuance of a stay of a decision described at paragraph
(b)(1), BLM will continue to authorize grazing under the permit or
lease that was in effect immediately before the decision was issued.
Clarifying language has also been added to paragraphs (b)(2) and
(b)(3). BLM believes it is important to actively manage the use of the
[[Page 39490]]
rangelands and not automatically halt grazing when a stay of a decision
is issued. This approach recognizes the continuing nature of grazing
operations that are authorized through permits and leases as
contemplated in the APA (5 U.S.C. 558(c)).
We invited comment (at 68 FR 68465) on how we might effectively
incorporate the provisions of the APA at 5 U.S.C. 558(c) and the APA
judicial review ``finality'' provision at 5 U.S.C. 704. Section 558(c)
provides in part, ``When the licensee has made timely and sufficient
application for a renewal or a new license in accordance with agency
rules, a license with reference to an activity of a continuing nature
does not expire until the application has been finally determined by
the agency.'' The APA's exhaustion requirements are found at 5 U.S.C.
704. As explained in our proposed rule at 68 FR 68465, an agency action
is not considered final for purposes of judicial review where the
agency requires by rule that an administrative appeal to a superior
agency authority be filed and provides that the agency action is
inoperative while the appeal is pending.
A comment from OHA suggested elimination of proposed section
4160.4(c), stating that the rationale for authorizing grazing
consistent with the stayed decision does not logically apply to the
cases described at paragraphs (c)(2) and (c)(3), which address forage
available on ephemeral or annual rangeland or ``temporarily
available.'' Such forage is, inherently, not reliably available from
year to year, and BLM allocates it on a short-term basis of a year or
less. Decisions allocating this type of forage do not involve activity
of a continuing nature under 5 U.S.C. 558(c). We agree with this
comment, and have adopted section 4130.6-2(b) in lieu of proposed
regulations at section 4160.4(c)(2) and (c)(3).
This same comment stated that it was difficult to evaluate proposed
section 4160.4(c)(4) without knowing the full range of decisions to
which it would apply, but that it seemed odd to provide for stay
petitions in a given category of cases and also provide that, if a stay
is granted in such cases, grazing will be authorized regardless of the
stay. If an administrative process is worth having, the comment stated,
effect arguably should be given to any stays that are granted.
Other comments expressed concerns about trying to identify the
types of cases to which paragraphs (b) and (c) of section 4160.4 might
apply. It is impossible to anticipate all types of appeals that might
be encountered because grazing decisions do not fit neatly into one of
the listed categories, these comments stated.
As a result of the concerns expressed in these comments, we have
entirely removed proposed section 4160.4(c) from the final rule and
limited paragraph (b) to apply to a very circumscribed set of
circumstances. With the intention of simplifying these provisions, and
improving administrative efficiency, we are revising the regulations
proposed at section 4160.4(b) to address the following kinds of BLM
grazing decisions:
? Those that cancel or suspend a permit or lease, those that
renew a permit or lease, and those that modify terms and conditions of
a permit or lease during its current term;
? Those that issue or deny a permit or lease to a preference
transferee; and
? Those that offer a preference transferee a permit or lease
with terms and conditions that differ from those in the previous permit
or lease.
If a BLM decision renews, cancels, or suspends a permit or lease,
or makes changes to terms and conditions of a permit or lease, and all
or some of these changes are stayed by OHA pending appeal, then, under
paragraph (b)(1), the affected permittee or lessee may graze in
accordance with the comparable provisions of the immediately preceding
permit or lease that were changed or deleted by the BLM decision under
appeal, subject to any applicable provisions of the stay order.
Under paragraphs (b)(2) and (b)(3), stays of decisions relating to
preference transfers are treated in an analogous manner. If the stay is
of a decision issuing or denying a permit or lease to a preference
transferee, BLM will issue the preference applicant a permit or lease
with the same terms and conditions as the most recent permit or lease
of that allotment or part thereof, under paragraph (b)(2). If the stay
is of a decision issuing the preference transferee a permit or lease,
but with changed terms and conditions, BLM will offer the permit or
lease with those stayed terms and conditions stated as they appeared in
the most recent grazing authorization pertinent to that allotment,
under paragraph (b)(3).
So, although the grazing decision appealed is stayed, grazing can
continue at the previous levels of use, as provided by the APA. This
ensures that the decision appealed is rendered inoperative for
exhaustion purposes under 5 U.S.C. 704 and the status quo prior to
issuance of the decision appealed remains in effect. In the instance of
an appeal and stay preventing implementation of a new grazing
authorization, the fact that a permittee may still be authorized to
graze at some level is not a function of the stayed decision being
implemented, but is consistent with the APA's concept that existing
authorizations remain in effect until an agency makes a final decision
on a new authorization. It is worth noting that the APA provides at 5
U.S.C. 558(c) that existing authorizations remain in effect until an
agency makes a final decision on a new authorization. BLM is making
these changes to balance the exhaustion of administrative remedies
under the APA and our responsibilities under FLPMA and TGA to--
? Manage lands for multiple use and sustained yield,
? Regulate the occupancy and use of the rangelands,
? Safeguard grazing privileges,
? Preserve the public rangelands from destruction or
unnecessary injury, and
? Provide for the orderly use, improvement, and development
of the range.
There is no need for a provision equivalent to proposed section
4160.4(c)(1) in the final rule. That paragraph provided that,
notwithstanding a stay order by OHA, we would authorize grazing
consistent with our decision that modifies a permit or lease because of
a decrease in acreage available for grazing. On internal review, we
found the proposed provision unnecessary in light of the provision in
section 4110.4-2(b), which gives grazers a 2-year lag time to reduce
grazing in decreased acreage situations.
In our proposed rule at 68 FR 68455, we noted that we were not
addressing whether BLM would be assigned the burden of proof in
appeals. A number of comments thought that this topic should have been
addressed, and moreover that BLM should bear the burden of proof to
support its decisions. Several cited the APA in support. Section 7 of
the APA, 5 U.S.C. 556(d), provides that ``[e]xcept as otherwise
provided by statute, the proponent of a rule or order has the burden of
proof.''
We believe the comments lack merit for the reasons stated in our
proposed rule. Each case must be analyzed on its own terms to determine
the identity of the proponent of a rule or order. A one-size-fits-all
rule would be difficult to craft. Case law of IBLA has answered this
question in one context: Where a rancher is claimed to have allowed
cattle to graze in trespass, BLM has the burden of proof. BLM v.
Ericsson, 88 IBLA 248, 255, 261 (1985). However, as we pointed out in
the proposed rule (68 FR 68456), if BLM denies a permit or lease to a
new grazing applicant, that
[[Page 39491]]
applicant would have the burden of showing where BLM erred in its
decision. See West Cow Creek Permittees v. BLM, 142 IBLA 224, 236
(1998).
One comment said that we should not have cited in our proposed rule
a workers compensation board case when discussing who bears the burden
of proof in grazing appeals.
We cited Director, Office of Workers' Compensation Programs v.
Greenwich Collieries, 512 U.S. 267 (1994), in our proposed rule because
it is a fairly recent case of the U.S. Supreme Court that examines
section 7 of the APA in considerable detail. Section 7 is key to any
decision assigning the burden of proof in a formal APA hearing.
A number of comments suggested that BLM consider imposing bonds on
appellants who are not directly affected by a BLM decision in order to
help pay for adverse economic impacts to permittees during the
adjudication of an appeal. We have not adopted the comment.
In order for an appeal to be filed, the person or entity filing an
appeal must be adversely affected by a decision of BLM. 43 CFR 4160.4.
It is thus unclear who would have to obtain the bond suggested by
comments. A bond is ordinarily required by BLM to protect the interests
of the United States. In such a case, the holder of a permit would have
to obtain a bond in order to secure the obligations imposed by the
permit and applicable laws and regulations. See, e.g., 43 CFR
2805.12(g) (bonding for rights-of-way.)
One comment stated that only those individuals who are directly
affected by a decision and can meet the standing requirements of 43 CFR
part 4 should be able to appeal terms and conditions contained in a BLM
grazing decision.
Regulations at 43 CFR 4.470(a) provide that any applicant,
permittee, lessee, or any other person whose interest is adversely
affected by a final decision may appeal to an administrative law judge.
Thus, the requirement that an appellant be directly affected appears to
be set forth in existing regulations. This requirement is also set
forth in the standing regulations of IBLA, which require that an
appellant be a party to the case and adversely affected by the decision
on appeal. A party is adversely affected when that party has a legally
cognizable interest and the decision on appeal has caused, or is
substantially likely to cause, injury to that interest (43 CFR
4.410(d)).
One comment stated that BLM regulations should provide for
independent science panels to examine and resolve grazing-related disputes.
We have not adopted this comment in the final rule. We believe that
the formal APA hearing provided by the TGA, with its opportunity for
presentation of evidence, cross-examination of witnesses, and decision
by an impartial tribunal, provides an opportunity for the evidence,
including scientific evidence, to be impartially examined.
It should be noted that there are mechanisms in place for providing
science advice and input before the issuance of a proposed and final
grazing decision. Existing regulations at 43 CFR 1784.6-1 and 1784.6-2
provide for the formation of a RAC, whose function is to ``advise * * *
the Bureau of Land Management official to whom it reports regarding the
preparation, amendment and implementation of land use plans for public
lands and resources within its area.'' RACs, in turn, may provide for
the formation of ``Rangeland Resource Teams,'' whose function is
``providing local level input to the resource advisory council''
regarding issues pertaining to the administration of grazing on public
land within the area for which the rangeland resource team is formed.
43 CFR 1784.6-2(a)(1)(iv). While a rangeland resource team is not an
independent science panel, one of its functions is to examine and
provide the RACs advice regarding grazing-related disputes. The
rangeland resource team, in turn, may request that BLM form a technical
review team from Federal employees and paid consultants whose function
is to ``gather and analyze data and develop recommendations [for
consideration by the rangeland resource team]
to aid the decisionmaking
process * * *.'' Id. Ultimately, if BLM's decision is disputed despite
the efforts and advice of these groups, it may be protested and
appealed under subpart 4160 and part 4.
One comment said that BLM should add to its regulation a
requirement that all parties in a dispute must first litigate under the
OHA administrative process to allow field solicitors to develop and
resolve cases before they are filed in Federal Court.
The comment is in effect asking for a regulation requiring
exhaustion of administrative remedies. The APA addresses exhaustion at
5 U.S.C. 704, and OHA regulations cross-reference this provision. OHA's
exhaustion requirement appears at 43 CFR 4.21(c) and 4.479(e). Those
regulations state that no decision which at the time of its rendition
is subject to appeal to OHA shall be considered final so as to be
agency action subject to judicial review under 5 U.S.C. 704, unless a
petition for stay of the decision has been filed in a timely manner and
the decision being appealed has been made effective pending the appeal.
For further discussion of administrative exhaustion and judicial
review, see the proposed rule at 68 FR 68465.
Subpart 4170 Penalties
Section 4170.1-2 Failure To Use
The proposed rule removed the term ``permitted use'' from this
section and replaced it with the term ``active use'' to be consistent
with the definitions in section 4100.0-5.
One comment addressed this section, stating that BLM should not
cancel a permit or lease for failure to make substantial use as
authorized or for failure to maintain or use water base property for 2
consecutive grazing fee years. The comment averred that this provision
could be construed to mean that if a well on private property is not
used for 2 years then BLM can cancel all or part of the lease. It went
on to say that BLM through its regulations is placing an unfair burden
on the lessee in his ability to obtain financing from a local lender,
that BLM's threat to cancel or suspend active use creates a major
obstacle in producing a feasible financial plan required by the lender,
and that lenders would not be impressed with a plan that would force
them to term out a loan over a period of time based on BLM's whim to
create uncertainty and prevent a positive cash flow for the borrower.
BLM disagrees. As indicated by the TGA, Congress intends grazing
permits and leases to be used for grazing purposes as ``necessary to
permit the proper use of lands, water or water rights owned, occupied,
or leased by'' the permittees or lessees. Failure of a permittee or
lessee to maintain or use water base property in the grazing operation
would indicate that the grazing operator is not making ``proper use''
of the water. Under these circumstances, it would be appropriate to
revoke the grazing privileges that had been associated with that water,
and to award them to someone who would maintain or use some other
nearby water in the furtherance of his livestock operations.
Agricultural lenders are, or should be, aware that retention of a BLM
permit or lease is contingent upon the permittee or lessee complying
with the grazing regulations that govern the permits and leases.
[[Page 39492]]
Subpart 4180--Fundamentals of Rangeland Health and Standards and
Guidelines for Grazing Administration
Section 4180.1 Fundamentals of Rangeland Health
In the proposed rule, we revised the introduction of section 4180.1
to provide that BLM will take action to change grazing management so
that it will assist in achieving the fundamentals only if there are no
applicable standards and guidelines in place. Also, we amended the
introduction to change the amount of time within which BLM would need
to take action to ensure that resource conditions conform to the
requirements of this section. In the proposed rule the deadline changed
from not later than the start of the next grazing year to not later
than the start of the grazing year following BLM's completion of
action, including consultation under sections 4110.3-3 and 4130.3-3 and
meeting all relevant and applicable requirements of law and regulations.
As a result of comments, we are amending section 4180.1 in the
final rule to clarify the relationship between the fundamentals and the
standards and guidelines. Specifically, we are replacing the first
paragraph of the existing 4180.1 with the following: ``Standards and
guidelines developed or revised by a Bureau of Land Management State
Director under Sec. 4180.2(b) must be consistent with the following
fundamentals of rangeland health.'' The fundamentals themselves remain
as approved in 1995.
This change recognizes the relationship of the standards and
guidelines to the fundamentals. The fundamentals are broad national
goals, whereas the standards are applicable at the local and regional
level. The proposed rule would have restricted regulatory action under
section 4180.1 to geographic areas without approved standards and
guidelines. But these areas were already subject to the fallback
standards and guidelines in section 4180.2.
Comments received highlighted that fallback standards and
guidelines are in place if state or regional standards and guidelines
have not been developed, and so application of the fundamentals is not
necessary in those instances. Comments also characterized the
fundamentals as encompassing critical requirements not included in all
standards and guidelines. A more precise way to look at the
fundamentals and the standards and guidelines is to examine the
differing character of these provisions. Standards of land health are
expressions of physical levels and biological condition, or the degree
of function required for healthy lands and sustainable uses. These
standards define minimum resource conditions that must be achieved and
maintained. A guideline is a practice, method, or technique determined
to be appropriate to ensure that standards can be met or that
significant progress can be made toward meeting the standard.
Guidelines are tools such as grazing systems, vegetative treatments, or
improvement projects that help managers, permittees, and lessees
achieve standards. A guideline may be adapted or modified when
monitoring or other information has shown that the guideline is not
effective, or that a better means of achieving the applicable standards
is available. (BLM Handbook H-4180-1)
The 1994 Draft Environmental Impact Statement described the broad
nature of the fundamentals, stating that they were intended to
``reflect the fundamental legal mandates for the management of public
lands under the Taylor Grazing Act, FLPMA, Endangered Species Act,
Clean Water Act, and other relevant authorities.'' (1994 Draft EIS,
page 1-16.) The 1994 Draft EIS also described the fundamentals as
providing the foundation for developing the standards and guidelines.
The fundamentals were intended to ``establish clear national
requirements for the preparation of State or regional standards and
guidelines.'' (1994 Draft EIS, page 1-15.) BLM complies with these
broad requirements in relevant laws and regulations through permit and
lease terms and conditions.
Once the standards and guidelines were developed, they became the
focus for assessing rangeland health, and for making determinations as
to whether existing grazing management was a cause for not meeting
standards and needed to be altered to achieve the locally applicable
standards and guidelines. Since the adoption of state or regional
standards and guidelines, BLM has relied on the standards and
guidelines to evaluate rangeland health. BLM is not aware of instances
where the standards and guidelines have not been relied upon. Before
the regulatory deadline for completing state or regional standards and
guidelines or the effective date of the fallback standards and
guidelines (43 CFR 4180.2(f)), BLM could have invoked the requirement
that it take ``appropriate action'' under section 4180.1 to make
changes to grazing permits and leases. However, BLM has relied on the
similar, so-called ``action forcing'' provision in section 4180.2 to
change existing livestock management in order to achieve locally
tailored state or regional standards and guidelines, or the fallback
standards and guidelines, once state or regional standards and
guidelines were implemented, or the fallbacks became effective as
provided in the regulations. This is consistent with how BLM described
the standards and guidelines when they were first proposed in 1994--
i.e., as functioning to ``focus BLM's management direction, promote
biological diversity, and improve agency efficiency in meeting
management objectives.'' (1994 Draft EIS, page 4-39.)
Standards describe the biological and physical conditions that can
be assessed to determine rangeland health, and guidelines are designed
to aid BLM in determining appropriate grazing management. The
fundamentals, in contrast, are designed as broad, overarching goals,
and reflect such relevant laws as the Clean Water Act, TGA, FLPMA, and
the Endangered Species Act. Compliance with these laws already occurs
through appropriate terms and conditions.
Although the 1995 rule established requirements for ``appropriate
action'' when either the fundamentals or established standards and
guidelines were not being met because of existing grazing, the
redundancy of requiring ``appropriate action'' in both circumstances is
unnecessary and inefficient, and impedes implementation. The current
regulations are inefficient and imprecise and, as a result, difficult
to administer. The broad description of condition and general
ecological processes set forth in the fundamentals make it very
difficult to link these broad characteristics to a determination that
livestock grazing is the cause of these watershed or ecological process
conditions. As discussed previously, standards set forth a descriptive
condition of expected rangeland health, and guidelines describe
methods, practices, or techniques to meet standards. Fundamentals, on
the other hand, are broad goals that are less susceptible to clear
linkage to just one use.
Standards and guidelines have been developed in conformance with
the fundamentals and adopted for all states and regions except southern
California. These standards and guidelines provide the basis for the
application of the broadly stated fundamentals to the management of
public lands. In southern California, the fallback standards and
guidelines provide for the application of the fundamentals to those
public lands. Because the standards and guidelines are meant to provide
specific measures for achieving healthy rangelands within the framework
of the broad fundamentals, a duplicate
[[Page 39493]]
administrative mechanism to require ``appropriate action'' under the
fundamentals is unnecessary.
The final rulemaking recognizes the relationship of the standards
and guidelines to the fundamentals. We do not anticipate an adverse
environmental impact from the fundamentals provision, as revised, but
rather anticipate overall long-term improvements in rangeland
conditions. This is based on the continued application of the standards
and guidelines, continued relevance of the fundamentals when standards
and guidelines are developed or revised, continued application of
relevant laws that were the basis for the fundamentals, and continued
use of the fundamentals to identify general characteristics of a
functional rangeland ecosystem in broad land use plans and allotment
management plans.
BLM will ensure that any standards and guidelines developed or
revised are consistent with the fundamentals, which remain unchanged
from 1995. By requiring newly developed or revised standards and
guidelines to be consistent with the fundamentals, the final rule will
provide clear guidance for any future effort to develop or revise the
standards and guidelines. BLM will continue to utilize the standards
and guidelines to assure that livestock grazing is conducted
consistently and in accordance with principles already being used in
rangeland ecosystems.
In the final rule, in response to public comments as discussed
below, we have also amended paragraph (d) to remove the reference to
``at-risk'' species.
Some comments expressed concern that BLM was replacing the
fundamentals of rangeland health in section 4180.1 with the rangeland
health standards in section 4180.2. The reasons given for concern were:
(1) BLM might no longer take action if we determined that conditions
expressed as fundamentals of rangeland health did not exist; (2) BLM
would not be able to evaluate the effectiveness of state or regional
guidelines; and (3) land health standards would take precedence over
the fundamentals.
Land health standards do not replace or take precedence over the
fundamentals of rangeland health, but further define the conditions
that must exist in order to achieve fundamentals of rangeland health at
the local or regional level. The effectiveness of state or regional
guidelines will be determined by evaluating whether or not standards
are met when the guidelines are followed. The purposes of the change in
section 4180.1 are--
? To make it clear that the fundamentals are the overarching
principles that managers aspire to meet when devising standards and
operating under guidelines in accordance with section 4180.2, and
? To remove an operational redundancy.
This redundancy in the current regulations requires BLM to do two
things:
(1) To modify grazing practices or take other possible appropriate
action when e determine that livestock grazing is a significant
contributing factor to failing to meet one or more standards or conform
with guidelines (the final rule retains this requirement), and
(2) To modify grazing practices or take other possible appropriate
action when we determine that it is necessary to do so to ensure that
the conditions described by the fundamentals exist (the final rule
removes this requirement).
A comment suggested removing or revising section 4180.1 because, as
framed in the current rules, the fundamentals do not conform to the
concepts and parameters presented in the National Research Council's
1994 publication ``Rangeland Health, New Methods to Classify,
Inventory, and Monitor Rangelands,'' and ``New Concepts for Assessment
of Rangeland Condition'' (Journal of Range Management, SRM 48(3), May
1995). It also suggested that the Criteria and Indicators developed by
the Sustainable Rangeland Roundtable be incorporated into subpart 4180.
BLM considered the National Research Council publication in 1995 in
developing national requirements that describe the necessary physical
components of healthy rangelands. (Rangeland Reform '94 Final
Environmental Impact Statement, p13). These national requirements were
retitled the ``fundamentals of rangeland health'' in the 1995 final
rule (60 FR 9954). The Journal of Range Management article ``New
Concepts for Assessment of Rangeland Condition'' provided a number of
recommendations for assessing and reporting range condition based on
ecological sites and ``Site Conservation Ratings.'' The fundamentals of
rangeland health are not intended to describe a condition rating
system; rather, they describe a threshold condition which either exists
or does not exist. BLM has been a participant in the ``Sustainable
Rangeland Roundtable,'' and the work of that group is ongoing. We have
determined that further adjustments of the regulations to be consistent
with the ``Sustainable Rangeland Roundtable'' products would be
premature at this time.
Other comments suggested moving the fundamentals of rangeland
health from the grazing regulations in subpart 4180 to the planning
regulations in subpart 1610, stating that the fundamentals are clearly
planning rather than management concepts. According to the comments,
the move would accomplish the 3 criteria listed in the Federal Register
(68 FR 68457): (1) Promoting cooperation with affected permittees,
especially land owners; (2) promoting practical mechanisms for
protecting rangeland health, and (3) improving administrative
efficiencies.
As explained in the proposed rule (68 FR at 68457), we did not
consider it appropriate to expand the scope of this rulemaking to
address planning regulations at subpart 1610.
A number of comments addressed the references to ``at-risk and
special status species'' and the ESA in subpart 4180. All suggested
removing the term ``at risk species'' found in sections 4180.1(d),
4180.2(d)(4), 4180.2(e)(9), and 4180.2(f)(2)(viii) because it is not a
term used or authorized in the ESA. Most expressed concern that
including the term would lead to single species management when BLM
should be managing for plant and animal communities and ecosystems.
Some also suggested removing the term ``special status species'' for
the same reasons.
FLPMA directs BLM to manage for multiple uses, including native
vegetation communities, and food and habitat for wildlife as well as
livestock. Even though it is preferable to manage native plant and
animal communities or ecosystems, the ESA requires threatened and
endangered species to be managed by BLM, species by species. ``Special
status species'' is defined in BLM Manual 6840, Special Status Species
Management, and includes listed, proposed and candidate species, state-
listed species, and sensitive species. Considering ``other special
status species'' in standards and guidelines (4180) will identify
potential management opportunities to avoid future listing of state
listed and sensitive species. Once a species is listed under the ESA,
multiple use management becomes increasingly complex and uses of the
public lands may become more restricted. Thus, BLM needs optimum
habitat conditions for all special status species. However, because the
term ``at-risk species'' is not defined in ESA or in BLM manuals or
handbooks, we have removed it from the final rule. The rule retains the
term ``special status species,'' because it is consistent with our
[[Page 39494]]
objectives in subpart 4180 and is clearly defined in BLM Manual 6840.
Section 4180.2 Standards and Guidelines for Grazing Administration
In the proposed rule we would have revised paragraph (c) of section
4180.2 to provide that we would require both assessments of standards
attainment and monitoring to support a determination that grazing
practices are a significant factor in failing to achieve, or not making
significant progress towards achieving, rangeland health standards. We
have amended this proposal in the final rule. Under the final rule, if
a standards assessment indicates to the authorized officer that the
rangeland is failing to achieve standards or that management practices
do not conform to the guidelines, then he will use existing or new
monitoring data to identify the significant factors that contribute to
the failure or lack of conformance.
We also amended paragraph (c) in the proposed rule to provide that
within 24 months following a determination that current grazing
practices are a significant factor in failing to achieve or make
progress towards achievement of standards and/or conform with
guidelines, BLM will, in compliance with applicable law and with
consultation requirements, analyze appropriate action and then issue a
final decision regarding the appropriate action it intends to implement
to remedy the failure to meet the standards and/or execute a documented
agreement regarding the appropriate action with the permittee(s) or
lessee(s) and the interested public. This change recognizes the
decision process specified at subpart 4160 that BLM employs to
implement management actions. This requirement to issue a ``final''
decision within 24 months recognizes that in most cases, in accordance
with subpart 4160, BLM final decisions are preceded by proposed
decisions that may be protested within 15 days of receipt, and that BLM
then must address any protest in the final decision. The 24-month
deadline within which BLM must issue a final decision (in the absence
of, or in addition to, the execution of an agreement) is intended to
accommodate both the 15-day protest period afforded to recipients of
proposed decisions and the time needed for BLM then to address the
protest and issue its final decision.
We are adopting the proposal in the final rule. BLM may extend the
24-month deadline when the legal responsibilities of another agency
prevent completion of all legal obligations within the 24 months. We
made this change to allow for the infrequent occasions when additional
time is needed to fulfill required legal and consultation obligations
that are outside BLM's purview and control. Upon executing the
agreement, or in the absence of a stay of the final decision, BLM must
implement the appropriate action as soon as practicable but not later
than the start of the next grazing year. We made this change in
recognition that legal proceedings can at times delay or halt
implementation of actions deemed appropriate by BLM.
We also removed the phrase ``Category 1 or 2'' with respect to the
designation of special status to candidate threatened and endangered
(T&E) species because the FWS no longer uses these designations.
As in section 4180.1, in this section also we have removed
references to ``at-risk'' species in the final rule.
Finally, we made changes in paragraph (c) that better reflect field
practice. Both Sec. 4180.2(c)(1)(i) and (c)(2), as proposed,
erroneously implied that an agreement or a grazing decision are
mutually exclusive. However, we often reach agreement and then issue a
final decision to implement the agreement to ensure administrative
finality. On the other hand, some field managers are comfortable with
just an agreement and do not necessarily want to follow up with a
decision. Such agreements, when they occur, must be signed by the
interested public, in addition to the permittee/lessee. Also, at times,
state agencies are signatory parties to agreements as well.
A number of comments supported the proposed rule provision that BLM
will use a combination of monitoring and assessment information to
determine whether existing grazing management practices or levels of
grazing use on public land are significant factors in failing to
achieve standards. The comments stated that the monitoring and
assessment requirement would lead to BLM having more defensible data to
support decisions, supply data from more than one point in time, ensure
that partnerships are producing desired results, foster stable range
condition and upward trend while maintaining custom and culture of the
West, and enhance efforts to protect the health of the land. Supportive
comments also referred to increasing credibility of determinations by
using quantitative data to support qualitative observations and
reducing the subjectivity involved in making a determination that leads
to changing terms and conditions in grazing permits.
The use of existing or new monitoring data to identify what factors
significantly contribute to not meeting standards or to conform to
guidelines and to support determinations regarding such failure will
focus and better inform the subsequent actions that BLM takes to
improve rangeland health as compared with actions taken based solely on
assessments. When monitoring data is used to identify livestock grazing
as a significant contributing factor, the range management actions
taken will be more effective and less vulnerable to appeal. The rule
thus would result in expediting actions to improve rangeland health.
Some comments contained suggestions for implementing the rule. Many
encouraged BLM to provide sufficient funding to collect the monitoring
data needed under the rule, and one comment requested a funding
strategy to show how BLM will provide the resources to complete the
monitoring necessary to implement this rule. One comment suggested that
permittees fund any monitoring above that currently required by BLM to
make decisions. Some comments suggested priority-setting strategies so
that high priority areas receive first consideration for monitoring.
Priority setting is also a policy issue addressed during the annual
budget development along with determinations on appropriate funding
levels. Funding sources and amounts for monitoring vary from year to
year, and BLM plans to work with permittees and others to determine how
data collection will be accomplished on high priority areas within the
allocated budget amounts. The budgetary effects of the monitoring
requirement in proposed section 4180.2(c) will be mitigated by the
amendment in the final rule that limits the need to use existing or new
monitoring data to those cases where a standards assessment indicates
that the rangeland is failing to achieve standards or that management
practices do not conform to guidelines.
Several comments expressed a desire for BLM to update policy and
handbooks to clarify methods and levels of monitoring needed so that
there would be consistency in data collection and interpretation. One
comment requested incorporation of ``the Catlin et al. 2003 report and
statistical tests (Grand Staircase/Escalante National Monument)'' into
the EIS because the report and statistical tests provide tools to
assist BLM staff in making rangeland health determinations. Comments
offered monitoring indicators for all the land health standards, and
suggested that monitoring should be focused on goals and objectives
agreed upon using consultation, cooperation, and
[[Page 39495]]
coordination. It was recommended that monitoring should be conducted by
qualified professional agency personnel working with permittees using
approved agency methods to collect data relevant to the decisions being
made.
BLM agrees that clear guidance on monitoring methodologies is
desirable. Many of the suggestions are more appropriately addressed in
the development of policy, handbooks, and technical references, rather
than in regulations. This applies particularly to techniques and
methods for collecting and interpreting data, which may be subject to
modification as new findings are announced in the scientific
literature. The suggestion to update policy and handbooks is
appropriate, and BLM plans to do so. We anticipate that we will
consider the information in the Catlin report as we develop and update
guidance. In the meantime, BLM follows monitoring guidance at Manual
Section 1734, and Manual Handbooks 1734-1 and 4180-1. BLM also monitors
the status of objectives from land use plans and activity plans, and
considers this monitoring information in evaluating land health
standards. BLM receives and considers other data and information
provided by affected permittees and others, to the extent practical,
during the development of evaluation reports. These reports include
evaluations of land health standards, evaluations of land use plan and
activity plan objectives, and biological evaluations relating to
consultation under Section 7 of the Endangered Species Act.
One comment suggested that BLM should add the following wording to
section 4180.2(c)(2): ``If the appropriate action requires a change in
active use, such change will be implemented in accordance with section
4110.3-3'' to clarify that timing conflicts are not intended between
the implementation requirements of this section and those of section
4110.3-3 on implementing changes in active use under the changes
recommended herein.
The regulations state in section 4180.2(c)(3), ``Appropriate action
means implementing actions pursuant to subparts 4110, 4120, 4130, and
4160 of this part * * *''. How changes in preference and active use
will occur is specified in section 4110.3-3, so we believe the
suggested word change to section 4180.2 is unnecessary.
Some comments stated that the regulations in section 4180.2 should
provide for individual allotment management plans with specific goals
and objectives, and including monitoring plans, to be developed through
consultation, cooperation, and coordination.
Section 4120.2, on allotment management plans, directs that such
plans provide for monitoring to evaluate the effectiveness of
management actions in achieving the resource objectives of the plan.
These plans are to be developed in consultation, cooperation, and
coordination with permittees, landowners, other agencies, and the
interested public. Therefore, we believe the suggestion has already
been addressed in the regulations.
A variety of comments opposed requiring both monitoring and
assessments to make determinations that rangeland health standards are
not being met because of current livestock grazing management. Most
were concerned that BLM did not have the budgetary resources to provide
adequate data collection and analysis and that the requirement would
impose an unrealistic workload on the BLM staff, putting resources at
risk by delaying appropriate actions. Setting priorities and assuring
that low priority areas were not monitored at the expense of high
priority areas was a concern.
As previously stated, BLM prioritizes expenditure of resources for
monitoring as well as for other activities in the range program. For
example, BLM assigns high monitoring priority to areas it believes to
be at risk, are in degraded condition, or in downward trend and in
danger of losing capability. BLM believes that it is more effective to
expend resources to collect data in these high priority areas, and to
use that data to ensure sustainable decisions from a resource and
implementation perspective. Under the rule, monitoring would not be
necessary on every allotment. The final rule requires that existing or
new monitoring data be used to identify significant contributing
factors and support determinations regarding the same only on those
allotments that standards assessment indicates are failing to meet
standards or conform to guidelines. This will ensure that subsequent
corrective action is focused on remedying the factors that monitoring
has verified are contributing to not achieving standards or not
conforming to applicable guidelines.
BLM currently administers grazing on about 21,535 allotments
(2005). We have established monitoring sites in nearly 11,500
allotments, and currently collect monitoring data to some degree on
about 3,500 of those allotments each year. BLM uses these monitoring
sites primarily to evaluate achievement of land use plan objectives, to
ascertain changes in condition, and to determine trend. Information is
collected at some of the monitoring sites more often than at others,
depending on priority and purpose.
As of the end of Fiscal Year 2002, about 16 percent of 7,437
allotments evaluated by that time (1,213 allotments) were determined
not to be meeting land health standards because of existing livestock
grazing management. We focused our first round of assessments on areas
with potential problems. Field offices were directed beginning in 1998
to prioritize allotments, watersheds, or other areas and ``to give
highest priority to areas believed to be at risk--in degraded condition
or downward trend and in danger of losing potential.'' (Washington
Office Instruction Memorandum 98-91) Additional guidance for assessing
high priority areas was provided in Manual Handbook 4180-1 and annual
work plan directives since fiscal year 2001. This experience should be
a good indicator of the proportion of allotments that are likely to
fail to meet standards as a result of livestock grazing practices in
the future. Thus, extrapolating from our experience leading up to the
end of FY 2002, we expect to need monitoring data to support less than
16 percent of our determinations that we make after August 11, 2006.
Under projected budgets, we fully expect to have appropriate monitoring
data to support our determinations, regardless of whether they lead to
a finding of failure to meet standards due to livestock grazing.
Other comments expressed opinions that monitoring was unnecessary
and existing direction was adequate for making determinations and
necessary adjustments, including flexibility to use existing data, that
using follow-up monitoring to determine if the change was needed is an
appropriate strategy, and that allowing immediate action when
destructive grazing practices and abuse are obvious is essential to
good management. One comment stated that requiring monitoring would
lead to increased litigation.
Once a standards assessment indicates that the rangeland is failing
to achieve standards or that management practices do not conform to
guidelines, the level of new monitoring, if any, needed to determine
what are the significant contributing factors in failing to achieve
standards or conform to guidelines will vary depending on such
variables as how obvious the causes are for not meeting standards, the
quantity and quality of existing relevant monitoring data, presence of
threatened or endangered species, conflicts between uses, and other
criteria. While BLM cannot control the number of
[[Page 39496]]
appeals or the amount of litigation after issuing a grazing decision,
we believe having a defensible basis for the decision will reduce the
number of instances where appropriate action is delayed because of
protracted administrative and judicial processes.
One comment, supporting the adoption of a comprehensive monitoring
strategy to chronicle the effect of grazing on rangeland health and
Federal trust species found on allotments, stated that rangeland health
determinations are the first step in identifying a need, if any, for
changes in livestock management to improve rangeland health conditions
and to ensure the sustainability of fish and wildlife resources. Until
such a determination is made, according to the comment, only limited
management actions can be initiated, and under current management,
again according to the comment, there are no specific requirements on
how to make these determinations.
While the comment generally supports the provisions on monitoring
in the proposed rule, it does not entirely accurately depict the
situation regarding rangeland health determinations. There is no
specific regulatory requirement that we must wait for a determination
before we can take an action. However, although the regulations do not
absolutely require a determination before BLM can take action, as a
matter of practicality and workload prioritization, we find the
determination process a useful tool. The comment also errs somewhat in
stating that there are no specific requirements on how these
determinations are made. It is true that there are no specific
requirements in the regulations. However, guidance for making
determinations appears in Manual Handbook H-4180-1.
Some comments stated that experience shows that monitoring of
rangeland standards is not being completed in a timely, effective
manner under current requirements due to BLM funding and staffing
limitations, and recommended BLM remove this requirement from the rule.
The comments suggested an alternative evaluation process, where an
interagency (and interdisciplinary) team evaluates range conditions and
determines management strategies in cases where adequate monitoring
data are not available. A few comments supported a comprehensive
monitoring strategy to chronicle the influence of grazing on rangeland
health and federally-listed species.
BLM believes that monitoring is an important component of
evaluating land health and making rangeland health standard
determinations. The final rule will enable the authorized officer to
have a solid factual basis for making decisions to adjust grazing use,
and could reduce the number of instances where implementation is
delayed because of protracted administrative appeal and judicial
processes. The proposed rule would help focus BLM budgetary and
staffing resources on monitoring where data are needed to determine the
reasons for not meeting the land health standard(s). Under BLM
procedures, interdisciplinary teams use existing monitoring data in the
evaluation process to determine status of the current conditions
relative to the land health standards. Where adequate monitoring
information is not already available, BLM will focus its monitoring
resources on gathering the needed information. The alternative
evaluation process suggested in the comments closely mirrors the
current process where existing monitoring data are not available. We
believe that decisions will be implemented more efficiently on the
ground when they are based on monitoring data, and may be less likely
to be subjected to administrative or judicial challenge.
Another comment maintained that range monitoring as practiced by
BLM consistently under-reports biological impacts of cattle grazing on
desert environments, particularly riparian areas, and that some
monitoring methods do not report loss of habitat function for wildlife,
increased susceptibility of soils to erosion, invasion of exotic
plants, or destruction of cryptobiotic crusts.
BLM does not agree with this comment. Monitoring is designed to
document conditions of a particular attribute or set of attributes at
the time data is collected. BLM uses a number of techniques and methods
to measure wildlife habitat conditions (including cover, structure, and
vegetation composition), ground cover, and presence of exotic plants.
We rely on many BLM Technical References and Technical Notes, including
TR 1734-4 ``Sampling Vegetation Attributes,'' 1996; TN-349
``Terrestrial Wildlife Inventories: Some Methods and Concepts,'' 1981;
``Inventory & Monitoring of Wildlife Habitat,'' 1986, by Cooperider,
Boyd, and Hansan; TN 395 ``Evaluation of Bighorn Habitat: A Landscape
Approach,'' 1996; TR 1730-1 ``Measuring and Monitoring Plant
Population,'' 1998; and TN 417 ``Identifying and Linking Multiple Scale
Vegetation Components for Conserving Wildlife Species that Depend on
Big Sagebrush Habitat: A case Example--Southeast Oregon,'' 2004. This
monitoring provides BLM with information about the condition and trend
in condition of resources. When monitoring the effects of livestock
use, BLM commonly measures utilization, cover, and frequency of use,
and relies on actual use reports and photographs. BLM then correlates
data to various management activities to determine effectiveness of
management in achieving objectives.
One comment stated that requiring monitoring before a rangeland
health determination is made has implications for measures needed to
conserve special status species in order to preclude listing. It stated
that where proactive range-wide measures are needed, such as in the
case of the sage-grouse, a requirement for monitoring before a remedial
action can be initiated may amount to an inadequate regulatory
mechanism. The comment recommended assessment and disclosure of the
impacts of the monitoring requirement on BLM's ability to implement
effective and timely conservation strategies to avoid the need to list
special status species.
Requiring monitoring data to make a determination of the cause for
not achieving a land health standard does not preclude BLM from
modifying grazing use to meet other resource management objectives.
Section 4130.3-3 provides that BLM may modify terms and conditions of a
permit or lease either with or without a determination under subpart
4180. Subpart 4180 is not the sole regulatory mechanism for
implementing measures that are needed to conserve special status
species. Therefore, this regulatory change does not impair BLM's
ability to take timely action to implement effective conservation
strategies that preclude the need to list special status species.
Several comments recommended that the rule should allow BLM to use
monitoring or assessment data or both for making determinations, as
provided in Alternative 3 in the EIS. The comment stated that this
flexibility would enhance efforts to protect rangeland health. A
related comment stated that BLM should not unnecessarily place the
burden of proof on itself to justify management changes by requiring
years of monitoring data before management changes can be required.
We have not adopted this suggestion in the final rule. BLM believes
that if determinations regarding the cause for not meeting one or more
standards are supported by existing or new monitoring data, they are
less likely to be challenged administratively or judicially. We believe
that devoting
[[Page 39497]]
attention to areas with highest priority will allow us to address range
health issues. In fact, at the end of Fiscal Year 2002, about 16
percent of the 7,437 allotments that had been evaluated were determined
not to be achieving standards because of existing livestock grazing
management. This indicates that monitoring should be focused on high
priority areas where there is a risk of not achieving land health
standards because of existing livestock grazing. The final rule does
add a provision to section 4180.2(c) that limits the monitoring
requirement to those cases where a standards assessment indicates that
the rangeland is failing to achieve standards or that management
practices do not conform to guidelines. In such cases, we will use
existing or new monitoring data to identify and support a determination
regarding the significant factors that contribute to the failure to
achieve standards. The final rule only requires the use of monitoring
data to determine causation in cases where assessment indicates that
rangelands are failing to achieve the standards or conform to the
guidelines. For the most part, BLM has been focusing its monitoring
efforts on those allotments where there are concerns or problems. We
believe that this requirement is reasonable and necessary to ensure
that we have adequate data to formulate and analyze an appropriate
action where we find that existing grazing management practices or
levels of grazing use on public lands are significant factors in
failing to achieve the standards and conform with the guidelines.
Further, as we have stated, determinations that are supported by
monitoring will make for better, more defensible decisions, especially
when we need to change grazing practices on allotments. BLM is adding
the requirement to use standards assessments and existing or new
monitoring data to support determinations of failure to achieve
standards and conform to guidelines because of existing grazing
management practices or levels of grazing use because both the public
and the livestock industry are concerned about a lack of adequate data
for making determinations. Although we often make these determinations
based on existing monitoring data, adding this requirement provides for
a consistent approach to making determinations.
We do not expect this provision to have significant budgetary
effects because, as described in section 4.3.1 of the EIS, only 16
percent of the allotments assessed over the last 5 years have failed
standards because of existing livestock grazing practices. While this
requirement may increase the ongoing data collection workload in the
grazing program, we expect to continue to monitor in those areas we
believe to be at risk, in degraded condition, or in downward trend and
in danger of losing capability, within our funding allocation without
needing additional funding. Further, the change in the final rule
limiting the monitoring requirement to cases where standards
assessments indicate rangeland failure to achieve standards or
management failure to conform to guidelines should reduce the workload
and budgetary effects of the final rule. Refocusing data collection
priorities may affect watershed assessment schedules and could delay
the permit renewal process in areas where relevant monitoring data is
not available. Under projected budgets we expect to have appropriate
monitoring data to support our determinations. The amount of monitoring
data needed is likely to vary from case to case. We will continue to
refine, as necessary, our guidance on monitoring to clarify such issues
as timing and levels of monitoring.
A comment asserted that BLM does not have the monitoring data to
show that their management practices are having any effect on
improvement of water quality on public lands.
One of BLM's primary resource management objectives is to meet
state water quality standards in water bodies affected by management
activities on public lands. Achievement of state water quality
standards is a rangeland health standard in each BLM region or state.
BLM determines total maximum daily loads of pollutants and develops
best management practices (BMPs), with coordination with and approval
by each state's environmental quality office. We conduct water quality
monitoring to assess the effectiveness of BMPs, as well as direct water
column sampling to determine compliance with standards in cooperation
with the appropriate state agencies. Streams and lakes are not removed
from the states' lists of impaired water bodies without full
verification and direct sampling data. Monitoring to determine the
effectiveness of each change in management is not possible, but
priority watersheds with existing water quality problems are monitored
sufficiently to determine whether new management practices designed to
improve water quality are effective.
Many comments supported the amendments of this section in the
proposed rule to allow BLM 24 months after determining that grazing
management practices or levels of use were significant factors in
failing to meet standards or conform to guidelines to formulate,
propose, and analyze appropriate action. They stated that providing
adequate time to develop and analyze appropriate actions with adequate
public and permittee involvement would result in better decisions
appropriate to the need. They said that the longer time frames would
allow a more accurate evaluation, and allowing 24 months instead of 12
months for initiating changing in grazing practices is more practical.
BLM agrees and has not changed any of the pertinent provisions of the
regulations in the final rule.
Another comment stated that the purpose of extending the time to
take appropriate action is to allow BLM staff time to bring together
the appropriate information and conduct necessary public involvement.
The comment encouraged BLM to retain opportunities for public
involvement. However, the comment stated, in this connection, that a
timely response to changing resource conditions overrides this need.
The comment also suggested that the proposed rule be clarified,
stating that some of the terms were confusing and made it difficult to
determine the effect of the extended deadline on the viability of
species. The comment stated that the wording ``to take action'' does
not indicate whether the deadline of 2 years requires action to be
``initiated'' or ``completed'' by that date. The comment asked for a
more thorough discussion in the FEIS describing the delays that may
result with adoption of the 2-year deadline, and the potential effects
on listed resources.
The comment is correct that the reason for extending the time
allowed to initiate action is to allow BLM staff time to bring together
the appropriate information and conduct necessary public involvement.
This provision would enable BLM to develop a thorough action plan,
consult with the FWS or the NMFS, and to solidify the decision to work
through the NEPA process, which involves the public. The proposed rule
would require an authorized officer to issue a final decision or
execute an agreement to implement appropriate action within 24 months
of a determination made under section 4180.2(c). The requirement to
take action within 2 years means that appropriate action would need to
be initiated via a final decision or agreement on or before that time,
but not necessarily completed on or before that time.
Taking up to 24 months to develop a meaningful action and issue a
decision less vulnerable to appeal will be more effective than issuing
a decision and
[[Page 39498]]
waiting even longer for an appeal to IBLA to be heard and resolved.
Under the rule, the BLM field manager has discretion whether to
allow 24 months for BLM to address failure to meet rangeland health
standards. There is no language in the rule that precludes a shorter
deadline, once BLM meets its consultation, cooperation, and
coordination requirements. Allowing 24 months to develop appropriate
action should improve the likelihood of determining the correct remedy
for a vegetative resource problem. Also, if immediate action is needed
to protect soil, vegetation, or other resources, BLM may invoke section
4110.3-3(b) and immediately close the area to grazing either totally or
partially.
Those who made comments opposing the change in the amount of time
to develop an appropriate action when livestock grazing was determined
to be a significant factor in not achieving a land health standard
focused on 3 areas. The first was that the extra time allowed is
inconsistent with the objective of accelerating restoration and
improving public rangelands and that it would create a delay leading to
additional degradation of resources or harm to fish and wildlife, and
detrimental to long-term range health. The second was that current
rules provided adequate time to take action, and that a ruling of the
9th Circuit Court of Appeals upholding the current regulations should
be continued as a management directive. The third area of focus was
that the change would provide preferential treatment not given to other
permitted uses.
With respect to the first concern, BLM believes that allowing up to
24 months (except in those cases where legally required processes that
are the responsibility of another agency require additional time) to
propose and analyze appropriate action needed to address the failure to
meet a rangeland health standard will result in improvements rather
than harm to resources, including wildlife. As stated in section 4.3.7
of the EIS, there may be limited short term adverse impacts if BLM
needs 24 months or more to develop an appropriate action that involves
extensive coordination and consultation. However, we expect the extra
time taken to develop a meaningful action to provide greater long term
benefits to other resources and an overall improvement in rangeland
condition. For example, just reducing the level of use in a riparian
area, rather than developing a management system that considers timing
of use, is not likely to improve the riparian area condition. Taking
the additional time to develop an appropriate action may actually
reduce the amount of time taken to implement a decision, particularly
if the decision is not appealed. Also, taking additional time should
improve the quality of the BLM decisions and reduce the likelihood of
successful appeal, and hopefully the number of appeals. Implementing
decisions can be delayed by 18 to 36 months if they are appealed. At
the end of FY2002, about 5 percent of grazing decisions issued after
1997 had been appealed. Labor and funds spent to address these appeals
are diverted from developing and implementing workable plans. In many
cases, the full 24 months may not be needed to develop appropriate
actions. Based on determinations made through the end of Fiscal Year
2002, the number of allotments affected by this rule appears to be
fairly limited. Of the 7,437 allotments (out of 21,535) assessed prior
to October 1, 2002, BLM determined that 16 percent did not meet
standards with at least one of the significant causal factors
identified as existing livestock grazing management or levels of use.
Of the 10,455 allotments assessed from 1998 through 2005, existing
livestock grazing or levels of use were determined to be a significant
causal factor for not meeting standards on about 15%, or 1537 allotments.
Regarding the second area of concern, BLM has determined that the
additional time is needed to enable us to develop and implement better
action strategies. We assume the ruling noted in the comments is Idaho
Watersheds Project v. Hahn, 187 F.3d 1035 (9th Cir. 1999). In the
proceedings that led up to that appellate decision, the district court
provided a schedule for completing evaluations of land health standards
and NEPA documents for 68 allotments, and issued interim management
guidelines pending completion of the NEPA documents and issuing grazing
permits. The decision referred to interprets the current regulations,
the effects of which are analyzed as part of the No Action Alternative
in the EIS. The final rule gives managers and partners an opportunity
to develop, as a result of the additional time, better alternatives
that will result in more positive long-term environmental effects. The
fact that the 9th Circuit upheld the current regulations does not
preclude BLM from proposing to amend the regulations to improve our
grazing management program. BLM's experience implementing the existing
regulations is that the regulatory requirement to take appropriate
action no later than the start of the next grazing season did not
always provide sufficient time to ensure compliance with relevant laws
and regulations, including requirements in the grazing regulations to
undertake consultation and coordination to develop an appropriate
action, NEPA, and, if applicable, ESA consultation.
The proposed rule does not change BLM's discretion to implement
decisions to adjust grazing use immediately if continued grazing use
poses an imminent likelihood of significant soil, vegetation, or other
resource damage, including immediate threats to listed or other
sensitive species. The proposed rule also contains provisions that
allow BLM and the permittee to enter into an agreement for shorter time
frames for implementation (section 4110.3-3). The final rule provides
sufficient time for BLM to comply with all applicable legal
requirements, while protecting fish and wildlife resources.
We do not agree that the changes in the regulations give
preferential treatment to grazing interests by extending the allowable
timeframe for developing and implementing corrective actions. Grazing
permittees are the only users required by these regulations to change
management in a specified period of time if that management is a
significant factor for not achieving rangeland health standards. If
other activities are determined to be the cause for not meeting those
standards, these regulations do not impose deadlines on making changes
in such activities, or even require changes in them.
The comments provided suggestions for changing the proposed rule.
One was to increase the time given to develop an appropriate action to
more than 24 months, because climate, weather, or other conditions
might require longer studies to determine rangeland health. Another was
to provide for a variable time frame on a case by case basis, because
different problems required varying time periods for initiating and
scheduling improvements. A third suggestion was to identify problems
associated with grazing practices within 3 to 6 months, and devise
measures to correct them within 2 to 4 months after they are
identified, including (a) planning an appropriate action with
appropriate consultation and coordination, (b) completing NEPA and
Section 7 ESA requirements, and (c) issuing a final decision to
implement the action.
We have revised the final rule to provide additional time to
develop appropriate actions when legally required processes outside
BLM's purview prevent completion of all legal obligations within the 24
month time period. In most cases, 24 months is an
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adequate period of time to develop appropriate action. Sometimes a
corrective action is as simple as changing a grazing period or
rotation. In other circumstances, corrective actions are more complex
and difficult to conceive and implement, such as when multiple
permittees in large allotments with multiple resource issues are
involved. When the process includes numerous legal requirements, such
as ESA Section 7 consultation, or extensive consultation and
coordination with numerous interests, we may need additional time to
complete the process. Developing appropriate action to implement
remedial grazing management can vary greatly in complexity depending on
the management circumstances of the allotment. In more complex
circumstances, just developing the appropriate action(s) is often not
straightforward. Time is needed for planning and budget considerations,
such as developing and coordinating a workable proposal, engineering
survey and design if range projects are a part of the corrective
action, consulting with Tribes and complying with Section 106 of the
National Historic Preservation Act (NHPA), NEPA analysis including
consultation with multiple entities and agencies, and securing moneys
to support these processes. In practice, when faced with more complex
circumstances, the relatively short period allowed by the current
regulation within which to devise and implement the appropriate
action(s) may not allow BLM time for internal alignment of the planning
and budget needed for timely implementation of the corrective action.
Current resources available to BLM to assess rangeland conditions on
160 million acres make it impractical for BLM to implement and maintain
a program to identify problems associated with grazing within ``3-6
months.'' In light of these operational realities, BLM cannot adopt
recommendations to shorten this time frame. We have therefore not
adopted these comments in the final rule.
One comment expressed concern that the effect of allowing up to 24
months to develop and analyze an action to make needed adjustments in
grazing would be to protect poor stewards and uncooperative ranchers.
The rule change is intended to provide adequate time ``to
formulate, propose, and analyze actions in an environment of
consultation, cooperation and coordination.'' Rather than protecting
poor management, this rule provides opportunity to develop an
appropriate action. BLM may still take appropriate action to modify
livestock grazing management where changes are needed to achieve land
health standards before the end of the 24-month period authorized in
the regulations. We recognize that, in the case of an uncooperative
rancher, it is unlikely that we would be able to obtain agreement
regarding the necessary appropriate action, and if that was the case,
the proposed change to grazing management would be implemented by a
grazing decision under subpart 4160. BLM is responsible for initiating
a change in management regardless of the cooperativeness of the
permittees or lessees or their management abilities. Additionally,
section 4110.3-3(b)(1) includes the phrase ``reasonable attempt to
consult with'' to allow BLM to implement immediate actions to address
resource conditions in situations where an entity is uncooperative.
Some comments included requests to provide BLM State Directors
authority to petition the Secretary for additions or changes to current
land health standards, stating that providing this authority would
allow BLM to modify standards based on current conditions or needs and
desires of local working groups.
The final regulations retain the provisions in section 4180.2(b)
that give the State Director the responsibility and authority to
develop or modify regional standards and guidelines, following
consideration of RAC recommendations. The Secretary of the Interior
must approve state or regional standards or guidelines developed by the
State Director prior to implementing them.
One comment urged BLM to find ways to reward ranchers who achieve
100 percent compliance with the standards for rangeland health, and to
manage permittees who fail to achieve compliance with the standards in
order to improve conditions on public lands.
The grazing regulations provide sufficient incentives for good
stewardship. Successful rangeland management may enable ranchers to
reap rewards in the form of sustainable levels of forage from year to
year. Ranchers who have a demonstrated record of good stewardship may
become eligible for additional forage if it becomes available, or may
want to explore with BLM the possibility of developing an allotment
management plan that potentially could result in greater operational
flexibility. However, BLM will not abrogate its responsibility to
manage public lands, regardless of whether grazing management practices
conform with applicable guidelines and/or an allotment achieves all
standards.
Several comments suggested that BLM include a ``social and
economic'' land health standard to demonstrate consistency with the
proposed requirement that BLM consider relevant social, economic, and
cultural effects in their NEPA analyses of the effects of changing
levels of grazing use.
We have not adopted this idea in the final rule. BLM believes that
land health standards should focus on the biotic and physical
components of the ecosystem, and that ``human dimension''
considerations are best dealt with in the NEPA analyses that we
conduct. In order to ensure consistent disclosure and consideration of
social and economic impacts, we have included requirements in section
4110.3(c) to analyze and, if appropriate, document relevant social,
economic, and cultural effects as required by NEPA before changing
grazing preference.
One comment stated that BLM grazing regulations should have
provisions in subpart 4180 that ensure protection of rangelands from
further degradation, improvement of water quality, and restoration of
areas adversely affected by grazing.
BLM, in consultation with RACs, has developed and approved regional
standards for rangeland health and guidelines for grazing
administration under section 4180.2 in all areas that BLM manages for
livestock grazing, except for the California Desert District. In the
California Desert District the fallback standards and guidelines in
section 4180.2(f) currently apply. Section 4130.3-1(c) requires that
permits and leases incorporate terms and conditions to require
conformance to standards and guidelines. BLM believes that these
standards and guidelines adequately provide for the protection of
rangelands from degradation, improvement of water quality, and
restoration of areas adversely affected by livestock grazing.
One comment urged BLM to eliminate completely the use of the
``rapid assessment'' or indicators of rangeland health (Tech. Ref.
1734-6) in assessing rangeland condition, stating that this is nothing
more than the old apparent-trend scorecard that the range management
and scientific community abandoned 70 years ago as being too subjective.
The authors of the 1994 National Research Council's (NRC)
publication Rangeland Health: New Methods to Classify, Inventory, and
Monitor Rangelands proposed an approach to assess rangeland health that
uses integrity of soil and ecological process as measures of rangeland
health (p. 95). They recommended the use of 3 criteria
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upon which to base an evaluation of rangeland health: (1) Degree of
soil stability and watershed function, (2) integrity of nutrient
cycling and energy flow, and (3) presence of functioning recovery
mechanisms (p. 97, 98). The report suggests a number of indicators that
can be used to measure and assess rangeland health. The report also
describes the use of indicators (soil and vegetation characteristics)
that are used by the Natural Resources Conservation Service (NRCS--
formerly the Soil Conservation Service, SCS) to indicate apparent trend
(USDA, SCS, 1976). The majority of indicators listed in Technical
Reference (TR) 1734-6 (jointly developed by United States Geological
Survey, NRCS, Agricultural Research Service and Bureau of Land
Management, 2000) are those listed in the NRC publication. BLM
recognizes that the process for assessing and interpreting indicators
of rangeland health as described in TR 1734-6 is qualitative, but is
extremely useful for providing an initial assessment of land health.
This initial assessment can then be substantiated by collection of
quantitative data through monitoring on those areas where concerns are
identified (BLM Manual Handbook H-4180-1 Rangeland Health Standards,
chapter III). BLM expects to continue to use the method described in TR
1734-6, Interpreting Indicators of Rangeland Health, in conjunction
with monitoring to make determinations of rangeland health and whether
or not existing livestock grazing is a significant causal factor where
land health standards are not achieved. We have made no change in the
final rule in response to this comment.
One comment requested that we restrict the fallback guideline in
section 4180.2(f)(2)(x) to the use of native plants and eliminate the
use of non-native plant species for rehabilitation or restoration
projects. Another comment encouraged us to retain the use of non-native
plants for restoration and rehabilitation projects under the conditions
listed in the fallback guideline in section 4180.2(f)(2)(x).
It is BLM policy to use native plant species in range improvement
and other projects intended to re-establish vegetation where they are
available and if we expect them to be effective. The current fallback
guideline at section 4180.2 (f)(2)(x) recognizes that at times native
plant materials are in short supply and in certain circumstances native
plant species cannot compete with established exotic invasive species.
Section 4180.2(d)(12) also continues to provide that state or
regionally developed standards for rangeland health ``[i]ncorporat[e]
the use of non-native plant species only in those situations in which
native species are not available in sufficient quantities or are
incapable of maintaining or achieving properly functioning conditions
and biological health.'' State or regionally-developed standards
created under this regulation have recognized that, on some sites,
native species are incapable of successfully competing with invasive
exotics. Where this occurs, BLM uses non-natives in rehabilitation
projects.
One comment asserted that it may be misleading to state that most
BLM states have completed establishment of standards. The comment went
on to state that, in many of these states, the grazing industry
controls state legislatures or has influence over them out of
proportion to the contribution of the industry to the economy and to
society, and that this brings into question the validity of state
rangeland health standards. BLM should have ultimate responsibility for
making this determination on lands entrusted to it by the public, the
comment concluded, and these determinations should be made using
techniques of rangeland science, by qualified individuals, either
employed by or under contract to BLM.
The comment misinterpreted what we meant by ``BLM states.'' BLM is
organized into different administrative levels and boundaries. One of
those levels is by state and at the state level there is a state
office. Some of the administrative states actually include more than
one state. For example, the Montana State Office includes the states of
Montana, North Dakota and South Dakota. In the DEIS in Section 2.2.8,
when we stated ``Most BLM States have completed establishment of
standards and guidelines * * *,'' we were referring to the BLM
administrative State Offices.
BLM professionals, along with many of our interested publics,
including but not limited to RACs, ranchers, and various organizations
and individuals, were involved with the development of BLM's rangeland
standard and guidelines. In most states, BLM coordinated or consulted
with state agencies or the state Governor's Office during the
development of land health standards, but not with state legislatures.
All rangeland standards and guidelines are based on current rangeland
science. BLM is responsible for implementing the standards and
guidelines and determining the condition of the public rangelands that
we administer.
VI. Procedural Matters
Executive Order 12866, Regulatory Planning and Review
The Office of Management and Budget determined that this final rule
is a significant regulatory action and therefore subject to review
under Executive Order 12866. The final rule would not have an effect of
$100 million or more on the economy. The regulatory changes would not
adversely affect, in a material way, the economy, productivity,
competition, jobs, the environment, public health or safety, or state,
local, or Tribal governments or communities.
The final rule would not create a serious inconsistency or
otherwise interfere with an action taken or planned by another agency.
BLM is aware that there are differences between its grazing program and
the program administered by the U.S. Forest Service (USFS). For
example, USFS regulations and procedures do not include a temporary
suspension category, unlike the BLM provision in section 4110.3-2. The
regulations at 36 CFR 222.9(b)(2) provide that title to permanent
structural range improvements on National Forest System lands such as
pipelines and water troughs remains with the United States, unlike the
BLM provision in section 4120.3-2 that allows for the sharing of the
title to some improvements with permittees and lessees. The USFS
regulations may provide for a more streamlined process to modify
grazing permits, particularly in situations where grazing activities
need to be restricted.
Despite these and other differences, BLM believes that any
inconsistencies between BLM's grazing program and that of the USFS are
not serious and will not interfere with actions taken or planned by the
agencies. They merely represent differences in management approach and
philosophy.
The final rule does not alter the budgetary effects of
entitlements, grants, user fees, or loan programs or the rights or
obligations of their recipients; nor does it raise novel legal issues.
However, the rule raises novel policy issues by reversing or otherwise
changing policy established in a 1995 final rule.
Regulatory Flexibility Act
Congress enacted the Regulatory Flexibility Act (RFA) of 1980, as
amended, 5 U.S.C. 601-612, to ensure that Government regulations do not
unnecessarily or disproportionately burden small entities. The RFA
requires a regulatory flexibility analysis if a rule would have a
significant economic
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