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Worland - The Nov. 3 Presidential Memorandum concerning mitigating impacts to natural resources, BLM Resource Management sage grouse plan amendments and the Waters of the U.S. (WOTUS) rule were some of the topics addressed by Travis McNiven on Feb. 13 at the annual meeting of the Guardians of the Range in Worland.

McNiven, state natural resources advisor to Sen. John Barrasso (R-Wyo.), encouraged producers to read the memorandum to understand the language being used in the document.


“This memorandum sounds nice, but it applies to a lot of agencies such as the Bureau of Land Management (BLM), U.S. Fish and Wildlife Service and Environmental Protection Agency (EPA), and it has some concerning terms that are not defined,” McNiven noted.

Irreplaceable natural resources and priority sites were two terms he cited as examples.

A number of concepts also concern McNiven, including advanced compensation, durability and implementation timelines related to mitigation efforts.

“Advanced compensation is the idea that, if we are going to take certain actions, we have to compensate and mitigate upfront and front-end the costs before actions can happen,” he explained.

The memorandum also refers to “net benefit,” a term that extends beyond “no net loss,” which could affect how mitigation actions are designed.


“Durability is a concept that is practiced already in mitigation. If we mitigate an action, we need to offset it with something for an equal length of time,” McNiven said. “What this memorandum adds on top of that includes the resilience of the benefit to include possible future environmental change. How are the federal agencies going to determine possible environmental change?”

Agencies have one year to finalize a mitigation policy, according to the memorandum, but McNiven notes there is concern with this timeframe.

“To do a good job with mitigation, a lot of data needs to be in place. There is a lot of baseline information about what exists now yet to be determined, so we really question if a year is going to be sufficient time to do a good job of being able to produce scientifically based information,” he remarked.

Sage grouse

Wyoming is familiar with the amount of work it takes to create effective mitigation plans, as seen in the development of sage grouse plans, and McNiven noted that 10 to 12 instruction manuals should be released in the coming months describing how the BLM will implement those plans.

“Wyoming is in a better spot than some of the other states because of the work that the state has done, but that doesn’t mean we are out of the woods,” he said.

Flexibility and a good working relationship between departments will continue to be important as sage grouse management plans move forward.

“I have often heard concern from the grazing community about the seven-inch stubble height that’s in the tables in the plan,” he continued. “That is not a requirement. The tables are based upon a minimum of 12 inches or more of annual precipitation, and a lot of places in Wyoming don’t have that.”

On the ground

Surveying the true conditions of the landscape will be an important component of implementing conservation and creating agreements between the BLM and Wyoming Department of Agriculture, McNiven added.

“There is going to be a lot of time out on the ground,” he stated. “It’s not going to be a fast process. I’ve had some good conversations with the state and federal agencies here in Wyoming and they want to make it successful.”

McNiven encouraged producers to stay engaged in the process, commenting that the ultimate success of work completed so far will depend on how actions are implemented by the BLM and Forest Service.


Moving on to the Waters of the U.S. (WOTUS) rule, McNiven described the history of how the term “significant nexus” came to be.

“In 2006, there was a case in the Supreme Court that basically came down to whether a certain wetland was defined as a navigable water. Navigable waters have traditionally been considered federal waterways,” he explained.

The result was a five to four verdict, where Justice Anthony Kennedy filed an opinion agreeing with the majority judgment that the Clean Water Act is limited and applies to relatively permanent bodies of water. However, Justice Kennedy’s opinion went on to include the term “significant nexus,” questioning whether the waterway in question served as a significant nexus to navigable water, avoiding full agreement with either side.

“Even though the court case was there, it left a certain amount of ambiguity and, the EPA decided they needed to solve that,” he remarked.

After going through many variations and drafts, the final rule was released, raising concern from many different groups throughout the country.

Expansive rule

“I can’t emphasize enough how expansive this rule is,” McNiven stated. “The rule has more to do with land than water when we consider what lands and land activity we may be required to have a permit for, whether there’s water there or not.”

The rule was stayed by a district judge in North Dakota for Wyoming and 12 other states that challenged the rule with a lawsuit, and it was later stayed nationwide by the sixth circuit court.

“Right now, the rule is stayed, meaning that it’s not going forward and it’s not enforceable as it moves through the legal process,” McNiven remarked.

He added that Sen. Barrasso has been leading the fight against the WOTUS rule in the senate by introducing the bipartisan Federal Water Quality Protection Act (S. 1140). His bill directs the EPA and Army Corps of Engineers to issue a revised WOTUS rule that protects traditional navigable water and wetlands from water pollution, while also protecting farmers, ranchers and private landowners.

Fifty-seven senators supported Sen. Barrasso’s bill by voting to end debate, however 60 votes were needed for the bill to proceed toward a final vote.

“We will continue to work on it. Stay aware of this issue. It really has a lot to do with what people can and can’t do on the landscape, whether or not there is water in a particular ditch year-round,” McNiven said.

Natasha Wheeler is editor of the Wyoming Livestock Roundup and can be contacted at This email address is being protected from spambots. You need JavaScript enabled to view it..

Washington, D.C. – On Oct. 5, USDA Secretary Tom Vilsack announced that negotiations on the Trans-Pacific Partnership (TPP) have concluded, representing the announcement of a groundbreaking step in global trade efforts. 

“Agreement on the TPP negotiations provides a more level playing field in trade for American farmers,” Vilsack commented. “Countries in the TPP currently account for up to 42 percent of all U.S. agricultural exports, totaling $63 billion.”

The agreement and removal of unfair trade barriers, Vilsack continued, opens further opportunities for agricultural products from across the nation.

“This is the largest, multi-lateral trade agreement of its kind,” he said. “This is a 21st century agreement. It is a high value, high standards agreement that will also allow the U.S. and member states to counter the Chinese influence and make sure everyone is encouraged to step up their game to the higher standards of the TPP.”

Tariff reductions

As a major contribution, Vilsack mentioned that the agreement includes elimination or reduction of tariffs across a broad spectrum of America’s agricultural products, including beef, pork, poultry, dairy, horticulture products, rice, grains, soybeans, wheat, cotton, processed products, alcohol and wine. 

“Virtually every commodity group will see elimination or reductions in tariffs or expanded preferential access,” Vilsack noted. 

A release from USDA said Japan’s beef tariff, currently as high as 50 percent, will be reduced to nine percent. Japan will eliminate duties on 75 percent of tariff lines, including processed beef products. Vietnam will eliminate tariffs and Malaysia will lock tariffs in at zero percent.

USDA Economic Research Service data from 2013 listed that beef and veal was Wyoming’s top ag export, followed by hides and skins, feeds and fodder, pork and wheat. Wyoming exports totaled $389 million in 2013, and 2,900 jobs were supported by exports in the state.

U.S. Meat Export Federation Senior Vice President Thad Lively commented, “The big prize here, I would say, for the meat industry is Japan and then after that probably Vietnam. Those are two markets where we historically faced very high duties.”

Trade barriers

Among the benefits seen in the TPP, Vilsack said, “The agreement would deter non-science based sanitary and phyto-sanitary (SPS) barriers that have put American agriculture at a disadvantage in TPP countries in the past.”

Agriculture products, Vilsack said, have a history of being excluded from markets based on SPS rules not based on risk or science. Historically, biotechnology has been included in those SPS rules.

“The agreement also includes a significant nod to organic ag and the desire to be engaged in discussion about equivalences so we can reduce barriers to organic exports that may occur,” he added. 

Industry reactions

The agriculture industry largely commended USDA for their work in the agreement. 

National Cattlemen’s Beef Association President Philip Ellis of Chugwater said, this agreement will boost U.S. exports. 

“While the full details of the partnership will not be released until the President presents it to Congress, cattle producers are assured this is a true 21st century agreement,” said Ellis. “The TPP will immediately reduce tariffs and level the playing field for U.S. beef exports to these growing markets. TPP is a major win not only for the beef industry, but for all U.S. export products, growing the economy while supporting jobs and investments in agriculture and technology.”

American Farm Bureau Federation’s President Bob Stallman added, “The Trans-Pacific Partnership has promised to open restricted markets for American business around the Pacific Rim. The American Farm Bureau Federation looks forward to reviewing the details of the agreement reached today to guarantee it fulfills that promise for the nation’s farmers and ranchers.”


Though many in the ag industry were overall positive on the deal, some Congressmen expressed concerns. 

Sen. Orrin Hatch (R-Utah) commented, “While the details are still emerging, unfortunately I am afraid this deal appears to fall woefully short.” 

Sen. Bernie Sanders (D-Vt.) echoed concerns, adding, “Wall Street and other big corporations have won again.”

Sen. Sanders also said the agreement would hurt consumers and the American jobs market.

Coming next

With an agreement reached, there are still several steps before the TPP is complete.

The final text of the TPP will be available in the next 30 days. Currently, teams of lawyers are reviewing the text of the document to ensure the language conforms with the intent of the agreement. 

Congress has the power to either ratify or reject the agreement with an up-or-down vote, but they cannot amend the TPP. 

U.S. Trade Representative Michael Froman told reporters on Oct. 5, “This is really a 2016 issue for Congress to consider, not a 2015 issue,” explaining that deliberations on the agreement would take months.

“There will be a process by which stakeholders, members of Congress and the general public will be provided information about the specifics of the agreement,” Vilsack said. “I think it is fair to say that agriculture is a winner, and we will do everything we can to make sure folks understand the historic nature and opportunity of this agreement.”

Saige Albert 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..

Casper – With the food safety rule updates proposed by the Wyoming Department of Agriculture (WDA) sparking debate among the state’s citizens, WDA held a series of three public meetings to collect comments on the changes.
    “This meeting is to discuss the changes to the food rules that have caused some concern and the misunderstanding about them,” said Dean Finkenbinder, WDA manager of Consumer Health Services. “Every four years, the FDA (Food and Drug Administration) updates their food code, and we are trying to keep up with the latest scientific information.”
    While a number of changes have been made to the Wyoming Food Safety Rule, three particular updates have caused concern, including the inclusion of cut leafy greens as a potentially hazardous food, addition of a new chapter on egg grading and raw milk rules.
FDA-based rules
    Finkenbinder explained that every four years, the FDA works to update their food code to reflect the latest scientific data. The most recent update occurred in 2009, and the WDA developed their rules to reflect FDA’s changes.
    While the Wyoming Food Safety Rules are not required to be based around FDA codes, Representative Sue Wallis of House District 52 noted, “In 2000, the Wyoming Legislature dissolved the existing Wyoming milk and meat statutes and adopted the FDA food rules.”
    “We use the FDA’s food code as a pattern to keep the latest scientific information reflected in our rules,” Finkenbinder added. “We are not bound by law to do that, however.”
Leafy greens
    In light of an increasing number of outbreaks of food borne illness related to leafy greens, including lettuce and spinach, cut leafy greens were added to the list of potentially hazardous food. As a result, producers wishing to sell cut leafy greens would be required to have an inspected facility to prepare the product.
    “It has been determined that when the leaf itself is cut into small pieces, it supports bacteria and can cause food borne illness,” explained Finkenbinder, noting that the rule is also consistent with FDA regulations. “If you want to sell cut leafy greens to a restaurant or grocery store, they would have to have proper facilities that are inspected.”
    However, rules for the sale of whole leafy greens – those that are simply harvested and washed – remain unchanged.
    “Usually, greens are cut at the surface of the ground, cleaned and sold,” he mentioned, adding that some groups of producers are beginning to work together to determine the best way to handle cut leafy greens. “These rules only affect when the leaf itself is cut into small pieces.”
Egg grading chapter
    A chapter was also added to the Wyoming food rules providing small producers the opportunity to sell graded eggs to restaurants.
    “The new chapter on egg grading will allow the small egg producer to candle and grade their eggs and sell them to restaurants,” Finkenbinder explained. “Currently, people can sell ungraded eggs at farmer’s markets, roadside stands, from their homes or even in grocery stores.”
    In order to qualify to candle and grade eggs, producers must have an egg candler and a sink for washing eggs that is separate from the home kitchen sink.
    “There is not a big cost investment unless you have lots of eggs,” he said. “Also, producers can only have up to 3,000 hens. Once up to that number, they fall under USDA requirements.”
    As far as producers selling ungraded eggs, the rules remain the same.
    Egg grading rules were added to Wyoming’s food rules at the insistence of producers and restaurants in the state.
    “We have gotten calls from restaurants wanting to know where producers are so they can buy eggs,” said Linda Stratton, WDA Consumer Health Services assistant manager. “We don’t have any.”
Raw milk contentions
    Rules regarding the consumption of raw milk proved to cause a stir among the attendees of the meeting, who felt it was unfair that they must own a cow in order to consume raw milk.
    “Several years ago, we put in a section in our food rules on raw milk,” Finkenbinder said. “Currently, the way it reads, unpasteurized milk and products made from unpasteurized milk may not be sold, delivered or provided for human consumption.”
    Finkenbinder noted that the WDA felt the rules were unnecessarily restrictive and extended beyond the intent of the rule, so changes were made to allow for consumption of raw milk by families, employees and non-paying guests from a cow owned solely by an individual.
    “If you have a cow, you could give that milk to anyone in your family or your non-paying guests, or you could drink non-pasteurized milk from your employer,” he explained, noting that much contention has been seen from the use of the word “solely” in the language.
    Finkenbinder noted that he has contacted the Wyoming State Attorney General about eliminating the word “solely” from the language, but has not heard back.
    “What we really want is the ability, if we want to, to buy raw milk,” commented one meeting attendee. “Do you have any data that shows people have gotten sick?”
    Statistics show that the number of food borne disease outbreaks associated with raw milk has increased, and Finkenbinder noted that the increase could be related to changes in consumption, but the breakdown was unavailable.
    He suggested that, if people are interested in purchasing raw milk, they should contact their legislators and encourage support of a bill related to raw milk sales.
    Attendees expressed interest in supporting legislation to allow for the consumption of raw milk, and Wallis noted that she has drafted a bill titled, “The Wyoming Food Freedom Act.”
    Finkenbinder also mentioned that, with the sizeable opposition to the rules, it would be unlikely that they would move forward as written.
    Visit to learn more about the Wyoming Food Safety Rule changes. Saige Albert is 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..

Public meetings lead to hearing
    Because of concern with the proposed changes to the Wyoming Food Safety Rule, the Wyoming Department of Agriculture (WDA) opted to hold three public meetings and a public hearing to consider the issue, said Manager of WDA’s Consumer Health Services.
    “We started with our hearings in Riverton several weeks ago, and yesterday we met in Sheridan,” said Finkenbinder. “On Aug. 22, there is a public hearing scheduled in Cheyenne at the Department of Agriculture building beginning at 1 p.m.”
    At the hearing, the Wyoming Department of Agriculture will take public comments, which will be analyzed before deciding to go forward with the current proposed food rule changes.

After the Environmental Protection Agency (EPA) ordered Uinta County resident Andrew Johnson to dismantle a pond built on his property because it violates the Clean Water Act, Senators and citizens from Wyoming have jumped in to help Johnson fight the action.

EPA issued the Compliance Order against Johnson late last week, claiming that he violated the Clean Water Act by building a dam on a creek without a permit from the Army Corps of Engineers. 

They have also directed him to restore the creek as it was or face penalties – up to $75,000 per day.

Johnson argues that the pond is a stock pond he built in 2012, thus exempting it from the Clean Water Act.

An April 4-dated letter from the Wyoming State Engineer’s Office indicates he followed all state rules and regulations in building the stock pond. 

“Its not about me,” Johnson told the Casper Star Tribune. “It’s about everybody across America. We have people in an uproar from one end of the country to another.”

Building a pond

When Johnson first began construction on the pond in a section of Six Mile Creek that runs through his property, he applied for a permit from the Wyoming State Engineer’s Office and received approval for his construction plan. 

However, EPA asserts that the two-foot wide, six-inch deep section of the creek is a “water of the United States.”

Their definition of the body as a water of the U.S. is because Six Mile Creek is a tributary of Blacks Fork River, which is a tributary of the Green River. The relationship of the creek to larger waterways, claims EPA, makes it subject to Clean Water Act regulation. 

EPA first notified Johnson of potential fines in January 2013 after an October 2012 inspection of the pond by the Army Corps of Engineers. 

The agency also maintains that Johnson broke a law by failing to obtain an Army Corp of Engineers permit prior to construction.

Support in Washington

Environment and Public Works Committee Ranking Member David Vitter (R-La.), along with Wyoming Senators John Barrasso (R) and Mike Enzi (R) took action following the order from EPA by writing EPA’s Acting Assistant Administrator for Water Nancy Stoner.

“Rather than a sober administration of the Clean Water Act, the Compliance Order reads like a draconian edict of a heavy-handed bureaucracy. The Compliance Order also appears to rest on a broad assertion of federal jurisdiction under the Clean Water Act, offering an ominous signal of EPA’s intentions for its current ‘waters of the United States’ rulemaking,” the three wrote.

“EPA appears more interested in intimidating and bankrupting Mr. Johnson than it does in working cooperatively with him,” the senators noted of the severe fines Johnson faces. “Fairness and due process require that EPA base its Compliance Order on more than an assumption.”

Broader argument

At the crux of the issue is the continuing definition of “waters of the United States.”

Proposed rulemaking by EPA dictates a redefinition of “waters of the U.S.” to include all ponds, lakes, wetland and natural or manmade streams that have any effect on downstream navigable waters.

The definition in the proposed rule would regulate waters regardless of whether they were on public or private property.

“We are skeptical of the Compliance Order’s claim that Six Mile Creek – into which Mr. Johnson allegedly discharged dredged and fill material – ‘is and was at all relevant times a waters of the United States,’” Senators Barrasso, Enzi and Vitter continued. “EPA has an obligation to more fully support its claim that Six Mile Creek is a jurisdictional water.  If instead the Compliance Order stands as an example of how EPA intends to operate after completing its current ‘waters of the United States’ rulemaking, it should give pause to each and every landowner throughout the country.”

Next steps

Johnson asserts that he will fight the agency’s order, commenting, “They are treating me as if I am guilty until I am proven innocent.”

Johnson is eligible to legally review the EPA decision and is likely to do so.

Additionally, the Senators said in their letter, “We ask also that EPA advise us in writing no later than March 24, 2014 as to whether the Compliance Order has been withdrawn. If the Compliance Order has not been withdrawn by that time, we request that EPA explain why it feels the Compliance Order is justified. As EPA provided Mr. Johnson with only 10 calendar days to respond to its Compliance Order, we trust that the agency is capable of responding within a similar timeline.”

This article was compiled from articles in the Casper Star Tribune, PJ Media and AP articles on the case. Look for more on this developing story in future editions of the Roundup.

Saige Albert is managing editor of the Wyoming Livestock Roundup and can be reached at

Denver, Colo. – “Ecosystems of the West are not narrow and focused,” said Western Governors’ Association (WGA) Executive Director Jim Ogsbury on March 15 during the opening of the Western Working Lands Forum. “They are broad, dynamic, messy, complicated and inter-related.” 

Ogsbury explained the Western Working Lands Forum is the association’s most broad, cross-cutting effort to begin to think about issues in the West on a large scale. 

“We want to explore inter-related resource issues at a landscape scale, to see if we can start to develop a common understanding and common definition to what landscape scale really means. Then, even if we have great differences, we can at least be confident we’re speaking the same language,” he said. 

Panelists from a wide range of background discussed cross-boundary collaboration to address several different challenges around the West.  

Lessons learned 

“When we’re talking about cross-boundary collaboration, we have to be inclusive in our approach,” U.S. Fish and Wildlife Service’s (FWS) Noreen Walsh said. “We have to set a table big enough for all the involved partners.”

Further, she noted true collaborative efforts “really take some time to marinate. Some things just cannot be rushed.” 

Respecting the needs of all partners must be balanced with a focus on addressing the ecological and biological realities of the target species is also top priority. 

“Achieving the balance between these things will not happen without constant collaboration,” she continued. 

Finally, Walsh asserted, “The Endangered Species Act (ESA) can definitely act as a significant catalyst to galvanize necessary, meaningful conservation, but at the same time, it sets timeframes that aren’t always very flexible and don’t always allow for the development of relationships or complex conservation strategies.

Large scale approach 

FWS strives at the end of the day, to support the long-game – healthy sagebrush landscapes that support people and species. 

“We have to have a ‘big tent’ approach to setting objectives, developing needed scientific information, putting these efforts on the ground and constantly communicating with all partners,” Walsh said. 

When looking at the last several years and success of working together cooperatively on important issues, Walsh commented, “I have hope we can marshal the same resolve that is going to take the next step in these efforts.”

Walsh further quoted Jay Tanner of Boxelder County, Utah, who said, “People of good will can accomplish a lot together.”


While partnerships are essential, a big challenge for cross-boundary management is interagency cooperation, said Jim Magagna, executive director of the Wyoming Stock Growers Association. 

As an example he cited sage grouse efforts with the FWS, noting that the agency’s willingness and enthusiasm to develop Candidate Conservation Agreements with Assurances was not echoed by the Bureau of Land Management, which took much longer to take similar steps on public land. 

“This cooperation is necessary,” he commented.

On the same token, private landowners are sometimes seen as an obstacle, though Magagna added that landowners are also important partners. 

He suggested looking more at how to engage and motivate private landowners. 

“A couple of things come to mind when working with private landowners,” Magagna explained, saying early engagement is top. “Don’t go to landowners and say, ‘We have a plan.’ Go to landowners and say, ‘We need to develop a plan and would like to have you at the table.’”

He added, “In the West, we ranchers are stubborn people, and if approached the right way, landowners can become the best partners. Approached the wrong way, however, and we can become the greatest threat to the success of any effort.” 

The need for incentives in developing partnerships is also important, Magagna noted. Incentives, however, can mean more than dollars and cents. 

“However, landowners can equally be motivated for the chance to enhance a resource when there is a chance for benefits to the resource,” he said. “The third area of incentive that is harder to define is operation and efficiency incentives.”

For example, flexibility in turn-out date for public land grazing based on climate, forage and other factors alone can be an incentive that engages landowners. 

“The opportunities are limitless,” Magagna said, “and I don’t think any of the challenges are insurmountable if we pull together and engage in addressing htem.”

Threats and opportunities

Magagna said building partnerships is paramount, but achieving that vision is accompanied by many obstacles.

“If it comes down to two magic words, they are whether we look at what is happens on the landscape as a threat or an opportunity,” Magagna said. 

Specifically addressing the Endangered Species Act (ESA), Magagna continued, “I think often, when we talk about ESA specifically, we must talk about – and we do – what the natural landscape is and what unit we should do business. I think sometimes where we fail is to talk about the human landscape.” 

Discussing the human landscape, including where people can come together and what the goals of the populations are. 

The scale of the human landscape, he added, can include areas as large as states or regions or as small as individual communities. 

Additionally, Magagna encouraged people to look at challenges on the landscape not as a threat but as opportunities to collaborate and get together to take actions that are meaningful for a wide range of populations.

“Let’s not overdo the threat component of these issues,” he said. “Success will depend not on the ability to overcome threats but on the ability to find opportunities and move forward with them.”

Look for more from the Western Working Lands Forum in future editions of the Roundup.

Saige Albert 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..