I. INTRODUCTION II. BACKGROUND A. Livestock Grazing on BLM Lands B. BLM Grazing Administration 1. Grazing Permits and Allotment Management Plans 2. Land-Use Plans III. THE PROPOSED NEW REGULATIONS A. Exclusion of Public Participation B. Suspension of Environmental Standards 1. Background: Rangeland Reform 2. The Proposed Regulations 3. The "Monitoring" Requirement C. Private Title to Water Rights and Range Improvements IV. HIDING THE BALL V. CONCLUSION
President George W. Bush fancies himself a cowboy, (1) and his appointments to top positions in the United States Department of the Interior (2) seemed well-chosen to warm the hearts of the ten thousand or so ranchers who graze cattle and sheep on the western public lands administered by the Department's Bureau of Land Management (BLM). It was therefore no surprise when, on December 8, 2003, Secretary of the Interior Gale Norton issued proposed amendments to BLM's grazing regulations (3) that were designed, in their own words, to "improve working relationships" between BLM and the ranchers. (4) If anything, the proposed amendments seemed late in coming. The Bush Administration had already proposed regulatory amendments and legislation to relax environmental controls and ease access to federal lands by loggers, miners, and oil companies. (5) The ranchers' turn seemed overdue.
To the ranchers, however, the proposed amendments should be worth the wait. Although the Federal Register notice proposing the amendments states that they are designed to "protect the health of rangelands," (6) as well as improve relationships with ranchers, a careful examination reveals that the proposed amendments are a virtual wish list for ranchers seeking liberation from environmental restraints and restoration of their historic position as dominant users of the western public lands. The amendments would repeal some environmental standards, (7) delay implementation of others, (8) and render most of the rest unenforceable. (9) They would remove critical opportunities for public land users other than ranchers to provide input into management decisions, (10) slant environmental analyses and appeals procedures to favor ranchers over environmentalists, (11) and even make it easier for ranchers convicted of environmental crimes to obtain grazing permits. (12) The proposed amendments would also allow ranchers to obtain ownership of water rights, fences, wells, and pipelines on public land, (13) thus crippling BLM's ability to manage the land in the greater public interest.
Historically, these proposed amendments can be seen as a response to Rangeland Reform, a more environmentally friendly round of amendments to the same regulations promulgated a decade ago by then-Secretary of the Interior Bruce Babbitt. (14) The amendments would explicitly reverse some elements of Rangeland Reform and render others ineffective in practice. But the amendments would do more than return the law of the range to what it was at the end of the Reagan and first Bush Administrations. They would excise some opportunities for public input that even those Administrations, not known for their friendliness to environmental activists, had considered necessary. (15) In effect, the proposed amendments would return ranchers to the exclusive role in critical public lands decision making they enjoyed before the advent of modern legislation such as the National Environmental Policy Act (NEPA) (16) and the Federal Land Policy and Management Act (FLPMA). (17)
Part II of this Article provides background information about livestock grazing on BLM lands and about the administrative plans and decisions that regulate such grazing. Part III looks at specific provisions of the current Bush Administration's proposed regulations that exclude the non-ranching public from critical decisions, that nullify, weaken, or delay implementation of environmental standards, and that permit ranchers to obtain private title to water rights on public lands. (18) Part IV relates the Administration's suppression of the analysis, performed by BLM's own staff, of the negative environmental impacts of the proposed regulations.
A. Livestock Grazing on BLM Lands (19)
BLM is heir to those federal public lands once known as the "public domain," i.e., those large portions of the American West that 1) remain in federal ownership because they have not been sold or given away to states or to private parties and 2) have not been set aside as Indian Reservations, National Forests, National Parks, National Wildlife Refuges, or other forms of federal reservations. (20) BLM's domain includes 176 million acres of mostly arid and semi-arid land in the eleven far-western states. (21) Livestock grazing, mostly by beef cattle, is authorized on over 90 percent of BLM's lands. (22) Because of their aridity, however, these lands account for only a tiny fraction of the national beef supply, (23) and livestock production on these lands makes a relatively insignificant contribution to the regional economy. (24) Just over half of public lands ranchers are hobbyists; they ranch for recreation or out of tradition, not for a riving. (25)
On the other hand, these same lands, which were once considered virtually worthless for any purpose other than grazing, (26) are now valued for a wealth of noncommodity resources, including hundreds of thousands of archaeological sites; habitat for thousands of species of wildlife; spectacular desert, mountain, and canyon scenery; and recreational opportunities that attract tens of millions of visitors annually. (27) By conventional economic measures, the value of the recreational opportunities alone on these lands greatly exceeds their value for livestock production. (28)
Over the last century and a half, livestock grazing has had a number of severe and pervasive impacts on the resources of the lands now managed by BLM. These impacts include replacement of native perennial grasses by shrubs and annual weeds, soil erosion, degradation of stream channels, loss of riparian vegetation, water pollution, destruction of wildlife habitat, trampling of archaeological sites, and spoliation of natural scenery and recreational opportunities. (29)
B. BLM Grazing Administration
1. Grazing Permits and Allotment Management Plans
A rancher may graze livestock on BLM land only if, and to the extent that, he is authorized to do so by a permit issued by BLM. (30) A grazing permit specifies where, when, how many, and for how long livestock are allowed to graze. (31) A grazing permit may also contain additional terms and conditions such as requirements for rotation of livestock between different pastures, removal of livestock when a certain level of forage consumption has been reached, or exclusion of livestock from environmentally sensitive areas. (32)
As an alternative to specifying terms and conditions in the permit itself, BLM may develop an allotment management plan (AMP) and incorporate it into the permit. (33) However, most grazing allotments do not have AMPs, most AMPs are old and outdated, and BLM is not developing many new AMPs. (34) Therefore, in most instances, the terms and conditions of the grazing permit determine the legally permissible extent of grazing.
Regardless of the legal limits imposed by a permit term or AMP, the decision of how many cattle or sheep will graze each year is often made unilaterally by the permittee or by informal agreement between the permittee and BLM. This informal decision making occurs because many BLM grazing permits authorize unrealistically high numbers of livestock. An unrealistic permit functions as a blank check, allowing the rancher to decide each year how many of the permitted number of livestock he will actually place on the range. (35) The difference between permitted and actual livestock numbers is termed "nonuse." (36) It is common for BLM managers to rely on the permittee's voluntary nonuse in lieu of modifying the permit to control grazing levels. (37) Although current BLM regulations limit voluntary nonuse to three years at a time, (38) this limit is rarely--if ever--enforced. (39)
2. Land-Use Plans
The Federal Land Policy and Management Act (FLPMA) calls for BLM to develop and maintain comprehensive land-use plans that govern all aspects of public land management, including grazing administration. (40) In theory, land-use plans constrain grazing permits by determining where grazing will or will not be allowed and by setting environmental standards that all grazing permits must meet. (41) But in the 1980s, under President Reagan's Interior Secretary James Watt, BLM neutered FLPMA's land-use planning process. Plans developed under Watt and his successors in the Reagan and first Bush Administrations--plans still in force today--are virtually devoid of meaningful restraints on livestock grazing. (42) George Coggins, Professor of Law at the University of Kansas and the country's foremost expert on the law of public rangelands, described a typical BLM land-use plan as a "nonplan," a "nugatory, meaningless exercise," and a "confused melange [sic] of do-nothing motherhood statements which offered neither managers nor users much useful guidance on future management." (43) Instead of making decisions about grazing management, most BLM land-use plans defer such decisions to the future development of AMPs or the specification of terms and conditions of grazing permits. (44) Moreover, even where a land-use plan contains specific management direction, that direction is not effective unless and until it is incorporated into AMPs or grazing permits, which it often is not.
III. THE PROPOSED NEW REGULATIONS
A. Exclusion of Public Participation
Recognizing the critical role of grazing permits in determining grazing practices, and thereby the condition of public rangelands, existing regulations provide a mechanism for interested citizens to be informed of, and to provide input into, BLM decisions about grazing permits. Upon request, any person can be designated as a member of the "interested public" with respect to a particular grazing allotment. (45) The regulations require BLM to consult with the interested public whenever it issues, renews, or modifies a grazing permit. (46) The consultation …