Grazing in Wilderness Areas
Squillace, Mark, Environmental Law
I. Introduction II. The Environmental Impacts from Livestock Grazing III. Grazing on Public Lands IV. Grazing in Wilderness Areas V. Reforming the Law on Grazing in Wilderness Areas VI. Conclusion
Domestic livestock grazing is naturally in tension with wilderness. Wilderness cannot truly meet the congressional mandate of being "untrammeled by man" (1) when managed livestock are allowed to freely graze wilderness lands. Yet the Wilderness Act expressly provides, without exception, that "the grazing of livestock, where established prior to September 3, 1964, shall be permitted to continue subject to such reasonable regulations as are deemed necessary by the Secretary of Agriculture." (2) Aside from conflicts with the very notion of wilderness, livestock grazing can also cause significant environmental harm. (3) And unlike the other major concession in the Wilderness Act--which allowed mineral locations under the General Mining Law (4) to continue, but only through December 31, 1983 (5)--the law makes no provision for ever allowing a federal agency to reduce or remove livestock from public lands because those lands have been designated wilderness. On the contrary, the law actually precludes the curtailment of grazing rights where such a curtailment is intended to protect an area's wilderness character. (6)
This Article asks whether the congressional compromise that allows grazing in wilderness areas to continue indefinitely was the right result. It concludes, with some reservations, that the benefits of a vastly expanded network of wilderness areas were well worth the potentially substantial environmental costs. The Wilderness Act itself might never have been enacted, and much of the wilderness that we prize today would simply not have been designated absent some such compromise. Nonetheless, some modest changes to the way that the law is currently administered can and should be adopted as suggested below.
The Article begins with a brief discussion about the beneficial and adverse impacts of livestock grazing on the ecological health of land systems and how those impacts might compromise wilderness values. It then proceeds to a discussion of federal grazing policy generally to provide context for the more specific discussion and analysis of the law relating to range management in wilderness areas. It is hard to deny that the compromise to allow grazing to continue in wilderness areas was necessary to secure passage of the law. (7) And grazing in wilderness areas can often be managed to protect and even enhance ecological conditions on the land. (8)
Nonetheless, there are times and conditions when the only sound ecological choice is to remove livestock from the land. (9) Moreover, both the Bureau of Land Management (BLM) and the Forest Service, specifically provide for reducing or removing livestock from nonwilderness lands through a relatively straightforward process, even if reductions remain somewhat unusual. (10) Somewhat oddly, however, the legal and political obstacles to removing livestock from wilderness areas actually make such a decision more challenging in these areas than it is for nonwilderness lands. But the law can and should evolve in a way that allows the reduction or removal of livestock from wilderness without unduly compromising grazing rights that pre-dated wilderness designation.
To that end, the Article concludes with a modest plea to clarify the authority of the BLM and the Forest Service to reduce or remove livestock for reasons other than the fact that the land is designated wilderness. In addition, the agencies should recognize their existing authority to accommodate the voluntary but permanent retirement of grazing in wilderness areas. While some guidance may be needed to help agency officials understand existing law and process retirement applications, government policy should ultimately encourage such retirements, especially where they will promote the ecological health of affected wilderness areas. …