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Last Updated on Tuesday, 25 August 2009 05:41

Written by Christy Hemken

Cokeville — In early May the 10th Circuit Court of Appeals in Denver, Colo. ruled that permittees grazing the Smithsfork Allotment northeast of Cokeville have no right to an administrative appeals process before Bureau of Land Management (BLM) implements management changes on their grazing allotment.
    That decision applies not only to members of the Smithsfork Grazing Association, but to the rights of all grazing permittees utilizing BLM land.  
    “The court basically said that, as a matter of law, grazing permittees are not entitled to an automatic stay in a BLM decision,” says the ranchers’ attorney Brandon Jensen, a senior associate with Budd-Falen Law Offices, LLC in Cheyenne.
    He says the decision required an analysis of several statutes and cases, and the court ultimately concluded the law does not provide a stay on the implementation of changes during an administrative appeal.  
    Jensen says this policy is difficult for the operators. “They’ve had to live with a decision implemented against them despite the fact they appealed through the administrative appeals process. They have to live with it, despite the fact they disagree with it and they think they have valid arguments against it.”
    “They shouldn’t have to live with a decision until the BLM has proved a case against them, but instead it’s the reverse. They have to live with it until they prove their case against the BLM,” adds Jensen.
    Cokeville-area rancher Fred Roberts says the issue began in 1995 when a Coordinated Resource Management program was formed in the area. “There were changes needed on the allotment, and there was a lot of money spent on both sides. Now the allotment’s in a lot better shape, which is documented by rangeland monitoring every year.”
    Roberts says winning the court case would have put ranchers in a better position to negotiate what they’re trying to do in the Smithsfork area.
    “Three years ago the BLM and the Smithsfork Grazing Association came to an agreement on the allotment’s rotation,” says Roberts, who leads the grazing association.
    Because of the geography of the allotment, it’s been broken into four pastures. In two of every four years, Roberts says the official rotation is virtually impossible because it moves cattle diagonally instead of circular around the pastures.
    “I think the BLM recognizes that,” notes Roberts. “The problem was when we came to an agreement, which wasn’t perfect for either side, and then Western Watersheds intervened in our agreement and stopped it.”
    “That has been the real problem,” says Roberts. “After years of working together we came to an agreement, then Western Watersheds intervened and stopped it, so we proceeded with the court case, hoping to better our position, as far as how we could renegotiate with the BLM regarding the rotation.”
    Jensen says the group first appealed the decision in April 2005. “Here it is May 2009, and we still have the appeal pending, hoping to get an administrative hearing.”
    He says currently the operators are in a “no man’s land” as far as their options are concerned. The only place to go from the circuit court is the Supreme Court.
    Roberts says the permittees won’t pursue the issue any farther. “We figured if we could prevail here, that would be our best chance.”
    “We consider it unfair that the permittees have to live with a decision while they’re appealing it,” says Jensen. “Sometimes it can take two to five years to get an administrative hearing.”
    “When a decision is issued by the BLM it goes into full force until you take it to court and sort it out,” says Roberts.
    “If we’d have been successful, it really would have changed how BLM lands are managed,” notes Jensen.
    For now, Roberts says he and his neighbors have to use the nearly unworkable rotation system that’s been put in place, unless the BLM is willing to go back and sign another agreement as they had before Western Watersheds stepped in.
    Although there’s public land in the allotment, Roberts says there’s virtually no public access so the area landowners have posted the boundaries, limiting who can travel through. “We have permission forms, and we let anybody come and go exactly as they have in the past for hunting, fishing and gathering firewood, except Watersheds is no longer welcome,” he says.
    “We’re going to have to figure out with the BLM how we can get back to the agreement we signed,” says Roberts. “We thought we had a system that was doable for both sides, then Watersheds intervened so we’re looking at another way to get there. We’d hoped with the court case would make our position stronger in renegotiating the allotment.”
    Despite the legal drama, Roberts says the permittees will strive to keep improving and to meet their goals for the land, along with the BLM. “We’ve gotten to the point that we both seem to have the same goals,” he comments. “In the years the rotation doesn’t make sense, then it’s a real struggle to meet the goals for that year.”
    “I can’t say I didn’t anticipate the outcome,” says Roberts of the case. “It would have been a real plus for everyone involved – that you’d have a stay when a decision was issued until you had your day in court.”
    Christy Hemken is assistant editor of the Wyoming Livestock Roundup and can be reached at This email address is being protected from spambots. You need JavaScript enabled to view it. .

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Last Updated on Friday, 08 July 2011 12:57

Written by Christy Martinez

The Green Mountain Common Allotment is a piece of land in central Wyoming that’s about 50 miles long and 30 miles deep at its widest point. The allotment hosts 16 grazing permittees, and recently the BLM issued a new decision dictating new rangeland management parameters – only the latest in a long list the permittees have had to fulfill.
According to the BLM Lander Field Office, the decision is based on the analysis of alternatives in a new environmental assessment (EA), and is the result of “extensive consultation and coordination between BLM, grazing permittees and interested publics.”
The new EA divides the allotment into four separate allotments, implements deferred grazing systems specific to each new allotment, reduces animal unit months (AUMs) to levels that are “more appropriate for the lands within the allotment,” implements forage use standards and authorizes “new, carefully designed range improvement projects.”
Permittee Tom Abernathy, who has been involved in the allotment in some way for 37 years, says there are some things he and the other permittees can’t live with, including the reduction of AUMs by 45 percent, and, instead of suspended non-use, those AUMs will be canceled.
“We asked them to put them in conservation non-use, so as conditions improve we can move up in our AUMs,” explains Abernathy.
Additionally, the BLM Lander Field Office has been using stubble height as the final parameter by which to measure the allotment’s health, contrary to the requests of the permittees.
“We’ve been adamant to go to a more science-based monitoring program,” says Abernathy, adding that they’ve even raised the bar from four inches of stubble height to six. “Less than three percent of the allotment is riparian areas, and only one percent of those riparian areas are federal land. It’s hard to achieve that stubble height when so little of the acreage is riparian.”
Under the new decision, the west side of the allotment will also decrease from a six-month to a four-month grazing season.
“We had told them we have to have at least four-and-a-half months,” says Abernathy.
The allotment’s extensive herding requirements will continue, using an imaginary boundary.
“We’ve tried herding for 10 years – since the 1999 decision,” says Abernathy. “Herding livestock is very difficult, particularly in the hot season when the cattle congregate on riparian areas. We get a lot of pneumonia, and it’s impossible to drive the cows 10 miles in 100 degrees when they turn around and walk right back.”
“Rubel Vigil of the BLM Lander Field Office has stated that he’s read about herding in the book, and that it can be done,” he adds.
Abernathy says the agency also restricts fencing near the Oregon Trail, and that the permittees have eight-and-a-half miles of electric lay-down fence that can only be up for 60 days.
Abernathy estimates the intensive management practices required by the BLM add $20,000 each year to running livestock on the allotment, but even at that cost it’s nearly impossible to hire good enough herders for any amount of money.
“They’re way more expensive than the BLM thinks – they used to tell us we could hire a herder for $800 per month, and they got us to start by loaning us a camper and helping us out,” says Abernathy, adding that The Nature Conservancy also contributed grants to pay for the herding for the first year or two. “But that railroaded us right into the program, and now 10 years later we’re trying to fund it ourselves.”
Abernathy notes that the new decision fails to mention any of the positive management efforts by the permittees over the last 10 years.
“In the last 11 years we’ve been operating under a 40 percent preference, have built numerous wells, water gaps and everything the BLM has asked us to do,” he says. “We reduced AUMs and season of use, and during the really dry years they told us that when conditions improved we could move back up on AUMs.”
Abernathy says he’s heard it quoted that every AUM lost costs the local community $78. Multiplying that by what’s been given up on the Common, he estimates $1,847,000 has been lost in the local economy.
“We don’t know where we’re going to go with this decision,” he says of the future. “We’re sure some entities will appeal, but not all are on board.”
The permittees have already been involved in a case relating to Western Watershed Project’s preliminary injunction filed to stop grazing for 2011. While grazing was allowed for the 2011 season, the case hasn’t yet been dismissed, and the next hearing will be July 7.
“People have the perception that the allotment is in horrible condition, when, in reality, very few of the allotments in our district are in as good of condition as the Green Mountain Common,” states Abernathy. “The BLM states the horrible condition the allotment’s in, and that’s just not so. We’ve been through 10 years of less than 40 percent preference, and the allotment is in an improving state, but that’s not been recognized by the Lander Field Office.”
Wyoming State Grazing Board Rangeland Consultant Dick Loper has been assisting the permittees where he can, and he says, “These folks pay attention, and are trying to save their ranches.”
To others who graze on public lands, Loper says to talk to local BLM personnel as often as they feel comfortable to see what’s going on with their allotment.
“Become a lot more knowledgeable about your allotment, and do as much monitoring as you can alongside the BLM,” says Loper. “We encourage all of you to do it at the same time, same place.”
Of the Wyoming State Grazing Board, which was established in 1979, Loper says, “When a group of ranchers has problems, like the Green Mountain people, we try to provide technical assistance and work with their lawyers. Now we’ve got a brand new decision on the books for Green Mountain, and hopefully we can get through it.”
Abernathy says a group of the permittees has contacted the BLM for a meeting to clarify some of the decision’s provisions.
“We’re really disappointed that they won’t ever give us an allotment management plan (AMP),” he says. “We’d like to see them move in that direction, where we’d be more involved in the decision-making process and management on the allotment and its projects. They say we’ve been involved, but they keep dropping projects we want and leaving ones we could live without.”
Abernathy says a good thing that has come out of the decision is that the BLM has agreed to work on a monitoring program in cooperation with the permittees and the Office of State Lands.
“We have had the opportunity to go out on the ground and monitor, but we’d like it to be more of a cooperative effort, where we all come away with the same conclusion,” says Abernathy.
“I’m all for sound range management – I don’t mind having an AUM reduction, as long as there’s an avenue to move those AUMs back as conditions improve,” he adds. “We’ve had 10 years of less than 40 percent preference, and the allotment, with the moisture of the last three years, can speak for itself. It’s poised to blossom.”
Christy Martinez is managing editor of the Wyoming Livestock Roundup and can be reached at This email address is being protected from spambots. You need JavaScript enabled to view it. .

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Last Updated on Friday, 08 July 2011 13:18

Written by Saige Albert

Senator John Barrasso introduced the Grazing Improvement Act of 2011 to Congress on May 26 in an effort to give producers grazing on public lands more stability.
“Livestock grazing on public lands has a strong tradition in Wyoming and in the West,” said Barrasso in a recent press release. “Ranchers are proud stewards of the land, yet extreme environmentalists have hijacked the permitting process with endless lawsuits aimed at eliminating livestock from public lands. These irresponsible tactics overwhelm permitting agencies and leaves ranchers at risk of losing their grazing permits. My bill gives ranching communities the certainty and stability they desperately need.”
Since 1995, when Secretary of the Interior Bruce Babbitt passed rangeland reform regulations, a number of problems with the grazing permit structure have existed, such as additional burdens on Congress and inconsistent appeals processes.
“Right now, each major section of this bill deals with a major issue in the livestock grazing industry. Sometimes there is a lot of fluff in bills, but every section of this bill is critical for a different reason,” says Wyoming State Grazing Board Rangeland Consultant Dick Loper.
“Senator Barrasso really has a knack for understanding an issue and knowing what is important in an issue,” continues Loper.
The primary problems identified in the bill include length of permits, delayed renewal of permits and an appeals process that is inconsistent between the BLM and Forest Service.
To address those concerns, Wyoming Stock Growers Association Executive Vice President Jim Magagna says, “We have looked for opportunities to address some of these issues, and Senator Barrasso expressed a willingness to address the issues in a targeted bill that isn’t too drastic.”
The Grazing Improvement Act of 2011, or Senate Bill 1129, is co-sponsored by six Republican members of Congress, including Senators Mike Enzi, Mike Crapo (ID), Orrin Hatch (UT), Dean Heller (NV), James Risch (ID) and John Thune (SD).
After being read twice, the bill was referred to the Senate Committee on Energy and Natural Resources, chaired by Senator Jeff Bingaman (D-NM), and is waiting its chance at a hearing.
“So far it doesn’t have any Democratic co-sponsors, so whether the committee will be willing to hear it is the first thing. It will be up to the committee chairman,” says Magagna.
Current regulations allow grazing permits for 10 years on BLM and Forest Service lands. Upon renewal of the permit, an environmental analysis of grazing lands under the National Environmental Policy Act (NEPA) is required.
The bill would accomplish four main goals addressing the problems created by Secretary Babbitt’s 1995 regulations.
First, the Grazing Improvement Act of 2011 extends the length of BLM grazing permits from 10 years to 20 years. In extending the length of BLM permits, more stability is provided for grazing permittees, according to Magagna.
Another problem exists in the ever-growing list of lawsuits filed by environmental groups. As a result, agencies are not able to complete necessary environmental analysis required by NEPA, delaying the process for renewing permits. While waiting for NEPA analysis, Congress is relied on to temporarily grant continued grazing permissions.
Magagna notes that currently there are over 900 permits in Wyoming that have been renewed based on the appropriations right through Congress, without completing the analysis and monitoring process because of a delay resulting from lawsuits.
“One of the main things, in our opinion, is that it codifies the appropriation writer language on the renewal issue,” says Loper. “Since 1999 we’ve had to go to Congress each year to renew permits.”
The bill alleviates the strain on Congress by taking out language necessitating that grazing permits be temporarily renewed through the appropriations bill each year. That language will be permanent, as long as grazing plans remain the same.
Additionally, the bill allows permits to be transferred without waiting for a NEPA analysis, as long as there are no changes of major significance in the grazing plan.
“The bill allows more stability for producers and more time for agencies to do their NEPA analysis and monitoring before renewing a permit,” says Magagna.
When permits are challenged, the Grazing Improvement Act could also allow continued grazing while an appeal is made.
“This provision very importantly says that the effective decision of the BLM would not take place until you have your day in court,” says Loper.
Appealing challenged permits or other decisions made by governing bodies, particularly the Forest Service, is also a long-standing concern of grazing permittees that is addressed in the bill.
“Something that has bothered us for years is that, if you appeal in the BLM, it goes to an outside agency. However, in the Forest Service, if you appeal a decision, the appeal goes to the next line officer up,” says Magagna.
For example, Magagna says, “A regional forester rules on a appeal from a forest supervisor, so the boss reviews the person who made the decision.”
He says this structure makes it very difficult to overturn any decision.
The new structure in the bill would allow the Forest Service to go through the Department of Interior Board of Land Appeals, similar to BLM appeals.
“This bill would try to make the appeals process more consistent between the two agencies,” says Loper.
“The bill also says that the BLM will be required to follow the Administrative Procedures Act, as well.  That is very important to us,” says Loper about the changes to the appeals process.  
“Certainly this bill is a good thing for everyone in the grazing industry, and I believe it is a good thing for land managers because it makes the processes much better,” says Magagna.
However, he admits that, undoubtedly, there will be opposition from the environmental community, and he anticipates those groups will insist the agencies should shorten permit lengths and do more extensive monitoring of grazing lands.
“I believe it will allow an opportunity to enhance monitoring, because it will be able to look at things longer-term,” says Magagna of the act.
If passed, the Grazing Improvement Act of 2011 looks to provide grazing reform for a number of problems that have plagued grazing permittees for years. Ultimately, Magagna comments that he thinks the act will provide more security for the grazing community.
Saige Albert is assistant editor of the Wyoming Livestock Roundup and can be reached at This email address is being protected from spambots. You need JavaScript enabled to view it. .

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Last Updated on Friday, 08 July 2011 13:17

Written by Christy Martinez

In a memo to BLM Director Bob Abbey, Secretary of the Interior Ken Salazar confirmed on June 1 that, pursuant to the 2011 Continuing Resolution, the BLM will not designate any lands as “Wild Lands.”
Though that may sound like a victory, Boulder rancher and Sublette County Commissioner Joel Bousman, speaking at the Wyoming Cattle Industry 2011 Convention and Trade Show in Laramie on June 2, said, “There remain many questions to be answered, and it’s premature to say that, based on this memo, the concerns about wilderness on BLM and Wild Lands are going away.”
In December 2010, Salazar issued Secretarial Order 3310, which directed the BLM to use the public resource management planning process to designate certain lands with wilderness characteristics as “Wild Lands.” The order was widely criticized for lack of input from Congress or local officials.
On April 14, 2011, Congress passed the Department of Defense and Full-Year Continuing Appropriations Act of 2011, which includes a provision prohibiting the use of appropriated funds to implement, administer or enforce Secretarial Order 3310 in Fiscal Year 2011.
“This appears that he is at least admitting he didn’t have the authority to do it in the first place, and now he says we’ll go ahead and identify lands that may be appropriate for Congressional actions,” said Bousman.
Despite stopping short of designations, Salazar did outline how the Department of Interior will work in collaboration with members of Congress, states, tribes and local communities to “identify public lands that may be appropriate candidates for Congressional protection under the Wilderness Act.”
“The protection of America’s wilderness for hunting, fishing and backcountry recreation should be a unifying issue that mobilizes us to a common purpose,” said Salazar. “We will focus our effort on building consensus around locally-supported initiatives and working with members to advance their priorities for wilderness designations in their states and districts. Together, we can advance America’s proud wilderness legacy for future generations.”
In the memo, Salazar directed Deputy Secretary David J. Hayes to work with the BLM and interested parties to develop recommendations regarding the management of public lands with wilderness characteristics. Noting “longstanding and widespread support” for the designation of wilderness areas, Salazar also directed Hayes to solicit input from members of Congress, state and local officials, tribes and federal land managers to identify BLM lands that may be appropriate candidates for Congressional protection under the Wilderness Act. Hayes will deliver a report to the Secretary and Congress regarding those areas.
Salazar also noted that BLM must continue to meet its responsibilities under the Federal Land Policy and Management Act of 1976 (FLPMA), including the requirement that it maintain inventories of the public lands, their resources and other values that it manages.
The BLM manages 221 Wilderness Areas designated by Congress and 545 Wilderness Study Areas, comprising approximately 8.8 percent of the nearly 245 million acres managed by the BLM.  
Bousman said his main concern is that actions including Wild Lands, the Equal Access to Justice Act and the Forest Service Planning Rule add up to management for preservation, as opposed to multiple use.
“The Forest Service is directed by law to manage for multiple use, but they’re talking about climate change in their new planning rule, and their action to manage for climate change is to kick off all activities and leave the land ‘natural’ and hope that helps,” said Bousman. “That’s managing for preservation as opposed to multiple use.”
Bousman noted that he lives in a public lands county totally economically dependent on multiple use on public lands.
“Without the use of those public lands we don’t have an economy, and our communities cannot sustain themselves. That’s where we as county commissioners have such a dog in this fight,” he said. “We’ve had a lot of discussion about how we, as local governments, can band together and be more effective at representing our multiple use economies. The economy of our state is highly dependent on the use of public lands; without that we’d have no economy in the state of Wyoming.”
Bousman said that three years ago energy revenue from Sublette County alone funded 20 percent of Wyoming’s General Fund.
“Almost all of that energy production was on public land, and that tells you how important it is,” he stated.
In response, the Wyoming County Commissioners Association, of which Bousman is president, hired a full-time staff attorney in early June to work with the BLM, Forest Service, grazing permittees and local governments.
He says the purpose of the attorney is to teach county commissioners how to be effective as cooperating agencies working with the Forest Service and BLM.
“I’ve had a lot of interest from a BLM liaison in D.C. who has offered to come participate on behalf of BLM, and to bring BLM into the same classroom with our county commissioners and explain what the law says, how they need to do their job and how county commissioners can be effective in representing their people on the ground,” explained Bousman. “This could be effective in any planning process where local folks determine they need to be a cooperating agency.”
“This whole Wild Lands issue, although it’s important, is one of many important issues. We need to figure out how to be more effective in our Western states in keeping our multiple use on our public lands,” he said.
Christy Martinez is managing editor of the Wyoming Livestock Roundup and can be reached at This email address is being protected from spambots. You need JavaScript enabled to view it. .