Ride 'Em Cowboy: A Critical Look at BLM'S Proposed New Grazing Regulations
Feller, Joseph M., Environmental Law
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. …