Green Mountain, Judge releases decision on grazing case

On March 13, Judge Andrew S. Pearlstein released his ruling on the Green Mountain Common Allotment case, largely upholding the Bureau of Land Managements three 2011 Final Grazing Decisions for the former Green Mountain Common Allotment.

The final grazing decision includes reductions in authorized use and provisions for the construction of new range improvements.

Dick Loper of the Wyoming State Grazing Board comments, “In summary, the BLM won almost all of the issues under dispute. Western Watersheds Project (WWP) lost everything they appealed, and the ranchers won very little.”

Loper continues, “The judge was pretty critical of BLM on quite a number of issues. However, he ruled in their favor because the burden of proof was too high to prove they didn’t do an adequate job. The appellants were unable to overcome that burden of proof.”

Additionally, however, Pearlstein also remanded the 2011 grazing decisions with respect to the terms and conditions for monitoring and seasons of use.

Background of the issue

In his decision, Pearlstein wrote, “The Bureau of Land Management’s Lander Field Office, in conjunction with grazing permittees and other interested parties, has wrestled with issues regarding appropriate management of livestock grazing on the Green Mountain Common Allotment (GMCA) since at least 1996.”

A 2011 decision by BLM split GMCA into four allotments with 19 pastures. In those Final Grazing Decisions, 18 of 19 existing grazing permits for 10 year terms.

The grazing use levels of the allotments were reduced by 45 percent, and construction was authorized for 40.5 miles of fence and 14 water developments. 

Fours groups filed appeals of the decisions, including Western Watersheds Project and five individuals, four permittees and the state of Wyoming.

Administrative Law Judge Harvey C. Sweitzer consolidated the appeals on Aug. 5, 2011 and granted WWP’s motion for a partial stay of the decisions, including the construction of improvements. 

At that point, Administrative Law Judge Andrew Pearlstein received the case.

Last year, Pearlstein heard the case and has issued his decision now. 

Decision

Loper explains that Pearlstein remanded decisions that BLM did not contain adequate monitoring sections – including monitoring of resources, development of resource objectives, cause and effect, and mitigation.

“BLM will have to work on those things very soon,” he says. “We can expect to see them this spring, which is good.”

“The judge also remanded back to the BLM for the flexibility of an earlier turnout dates,” Loper continues, noting that rancher’s testimony was sufficient to convince Pearlstein that BLM could authorize earlier turn-out dates during the spring if the land could support it.

Permittee thoughts

Permittees Tom Abernathy and John Armstrong were both involved in the case, and Abernathy says, “It is pretty evident that this is a win-win for BLM, for the most part.”

“More or less, this means we get to keep our permits,” says Armstrong. “And now, at least we can move forward with some range improvements.”

“The only thing permitees won was on the flexibility in season of use to maybe extend our grazing season, so we can turn out earlier and have a few more days in the pasture,” Abernathy says. 

He further adds that the issues associated with herding and range improvement constructions place hardships on permittees, especially when coupled with decreases in the number of animal unit months  (AUMs) available.

“We’ve been fighting the herding issue,” Abernathy explains. “It places a hardship on the permittees to require such intensive herding. It is too costly for us.”

He further notes that fence construction required by the decision will also be costly.

“The electric let-down fence is a lot larger than it needs to be and takes in a lot of upland we wanted to leave out,” Abernathy continues. “The judge said he acknowledged that we wanted to modify the fence.”

Range

On the range, Armstrong notes that the riparian areas, which account for less than three percent of the allotment, were not meeting Wyoming Rangeland Health guidelines.

“Hopefully we can meet those guidelines with some of our range improvements,” Armstrong says. “It will really help if we can get some of these fences built. How can we manage a riparian area in a big allotment with no fences?”

He also comments that the allotment also features many historic trails, such as the Oregon Trail, that cross the land, which further complicates the matter.

“Some of the decisions in the judge’s ruling aren’t very ag friendly,” Armstrong comments. “We’ve been bouncing in and out of problems for 11 or 12 years. We finally had litigation, and while it didn’t settle everything, we got through some of the things that were ridiculous.”

“The decision might work in the long-term, but it will be tough,” Abernathy comments. “How do we stand a 45 percent reduction in AUMs, have added expenses in range improvements to be implemented in the next three to five year and manage our livestock so extensively?”

Implications

Permittees are also concerned about the implications the decision could have on other permittees in other allotments. 

“I think that other permittees in allotments across the state better have a heads up,” Abernathy adds. “This is coming their way, too. The Green Mountain Common Allotment is the first one to fall.”

When Judge Pearlstein commented that permittees didn’t have a burden of proof, Abernathy also notes that permittees should be prepared in the future.

“The federal government can make a decision,” Abernathy notes. “The burden of proof is on the appellant to make sure that decision is correct.”

Next steps

“This decision can be appealed to the Interior Board of Land Appeals in Washington, D.C. by either party,” Loper says, “but I think that it is very unlikely that any party would appeal.”

While he believes an appeal is unlikely because of how critical Pearlstein was, Loper adds, “That doesn’t mean that a new action can’t be filed this summer. If anyone identifies something wrong with respect to non-compliance with the decision, they can file a new action.”

A meeting with BLM was set for March 28 to set strategies for grazing programs and to react to the terms set by Pearlstein.

Saige Albert is managing editor of the Wyoming Livestock Roundup and can be reached at saige@wylr.net.