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Federal Lands

Gillette – Wyoming is comprised of roughly 26.5 million acres of land. Thirty million of those acres are owned by the federal government, and the state only holds approximately 4 million acres. The Wyoming legislation is entertaining a potential change in those ratios and has formed a task force to examine the impacts it would have. 

In addition to Wyoming, Montana, Utah, Nevada and Idaho are examining the opportunity to change the ratio of federal and state lands. 

The first meeting of the Task Force on the Transfer of Public Lands was held on June 5 in Gillette, and Senators Eli Bebout and Larry Hicks and Representatives David Miller and Kermit Brown collected input on the transfer of federal lands.

A report with their findings is to be compiled no later than Nov. 1 and the task force will be dissolved. 

Effort in the West

Upon formation of statehood, many states wrote into their enabling acts that the people “forever disclaim any right and title to any unappropriated public lands lying within the boundaries thereof . . . that until the title thereto be extinguished by the United States, the same shall be and subject to the disposition of the United States,” according to the American Lands Council (ALC).

This portion of the enabling act stipulates that the government would dispose of the federal lands to the states. However, this has not been satisfied in the states west of Nebraska. 

“Statehood promises, read as a whole, are the same,” exclaimed Representative Ken Ivory (R-Utah), president of the ALC. “In many cases they are word for word the same.”

Even with identical wording in their enabling acts, Wyoming is comprised of 48.9 percent federal land while South Dakota has a miniscule 5.7 percent.  

Control of the lands

An increased control over Wyoming lands was cited during public comment to be in the benefit of landowners across the state that continually deal with oil and gas lines crossing their land.

Fred Oedekoven, a Campbell County rancher, is facing a fifth pipeline on his land. 

“I have four lanes already through me,” said Oedekoven. “When they put a pipeline through, they tell you it is in the best interest of the public. If it is in the best interest of the public as a whole, it should be as easy to get across federal lands as it is private lands.”

Campbell County Commissioner Garry Becker said the oil company stated they are going through private land because permitting was too lengthy and difficult on federal lands. 

Rob Hendry, Natrona County commissioner, land owner and BLM lessee, added his concern during public comment that a resource can be on private land but if any part crosses federal land, it is considered property of the government. 

“The control is not only over what they own, it is over what they can touch,” said Hendry, speaking of mineral rights.

According to Ivory, there is more than $150 trillion in minerals locked up in federal lands that are not being utilized. 

Potential benefits

“If Wyoming had control over its own land, we could keep some of the money that the land produces instead of Washington taking it,” commented Becker. 

He said a benefit of increasing state lands would be keeping revenue in the state, rather than being taken by the government.

“The federal government controls half of the land in our state, and we can’t do anything on any of that land,” added Becker. “Wyomings industries pay hundreds of millions of dollars a year and the government only gives us $5 million back a year.”

“We used to get back 48 percent when coal leases were sold, even though the coal was on private land, because the federal government controls what is below, they keep that 52 percent,” he continued. “Two months ago, they stopped that. They are keeping back $52 million from us.”

The sentiment was echoed by others.

“We need to secure Wyoming for our benefit and keep organizations outside of Wyoming from telling us how to operate our state,” stated Roy Edwards, former county commissioner, during public comment. “We can take care of our own lands way better than the federal government.” 

The U.S. Forest Service also provided comments to the Roundup on the potential for transferring federal lands to state ownership, noting that they are focused primarily on protecting the land for the future.

“The Forest Service is committed to continue working with state and local partners,” said Chris Strebig, U.S. Forest Service region two media officer, “and being active land stewards in Wyoming to provide a mix of uses including timber, grazing, recreation, wildlife and fish habitat while addressing compelling forest health needs, protecting communities from wildfire, and meeting tribal trust responsibilities.”

Two more meetings will occur to further discuss the topic. Presently, the times and dates have not been set.

Kelsey Tramp 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..

Douglas – With concern from landowners and the state of Wyoming over management of black-tailed prairie dogs in the Thunder Basin National Grasslands (TBNG), the Forest Service recently opened the TBNG management plan for an amendment.

“There is a varied history of management in the TBNG,” said Medicine Bow-Routt National Forest District Ranger Tom Whitson, who also noted that the amendment seeks to make changes to enhance the ability of the Forest Service to manage prairie dogs and protect landowners. 

Whitson described the new amendment and heard public comment during a Nov. 18 meeting, held in Douglas. 

History

Management of prairie dogs in the TBNG has a varied history.

“In 1999, the Forest Service prohibited the poisoning of prairie dogs on National Forest system lands across the West in response to the petition for listing of black-tailed prairie dogs,” Whitson explained. 

The management plan for the TBNG was revised in 2001 to include use of poison to manage those prairie dogs that might pose a threat to health and human safety or to prevent damage to infrastructure.

“In the 2001 plan, the management objective was set at 35,000 acres,” he continued. “In the 2009 plan, the objective is 26,000 acres, and the number of acres of ferret reintroduction were set at 52,190 acres.”

In 2001, the first recorded plague outbreak occurred, and prairie dog acres dropped from 21,000 acres to 4,300 acres. A second plague in 2007 reduced prairie dog inhabited lands to an all-time low of 3,200 acres.

“In 2005-06, we started working with a group called the Thunder Basin Grasslands Prairie Ecosystem Association,” Whitson noted. “In 2006-09, we began the process of again revising the management plan for prairie dogs in the TBNG.”

Amendment

After visiting with Governor Matt Mead during October 2012, Whitson said, “We talked about prairie dog management, and we discussed the potential proposal for amendment.”

In April 2013, Whitson added that the forest service received a formal request from Mead to amend the management plan.

The formal request included an established buffer of one-quarter mile around all private and state lands in categories one and two, modification of management tools to include anticoagulants in the buffer area and analysis of the triggers and decision trees currently utilized. 

The 2013 plan amendment will focus on amendments to management of prairie dogs classified as category one or category two. 

“In the 2009 amendment, the Forest Service also recognized that there were mistakes,” Whitson said. “There were typos and other mistakes that need to be fixed.”

The current proposed amendment also reduces the number of category one managed acres by almost 8,000 acres and the number of category two managed acres by about 13,800 acres.

Comments

With much concern over prairie dog management, ranchers, land managers and other interested citizens voiced their concerns over the plan.

Frank Eathorne, a rancher and member of the Thunder Basin Grasslands Prairie Ecosystem Association, questioned the use of acres for management, rather than population estimates.

“Acres are our way of measuring occupied habitats,” Whitson explained.

Tim Byer, U.S. Forest Service wildlife biologist, added, “Historically, we’ve used acres because it is a stationary target for us to track. Populations can vary between months.”

While Eathorne acknowledged acreage may be easier to calculate, he added that because population densities can also fluctuate, just measuring acres doesn’t allow managers to determine how many black-footed ferrets can be supported on those acres.

Additionally, the concept of a control colony was also brought to light.

“We are still going to have control colonies for human health and safety,” Whitson explained. “We are analyzing whether we need to have control colonies.”

Whitson also responded to audience questions about management of prairie dogs in sage grouse core areas and noted that the Forest Service will manage for both species.

Maintaining management

The ability of the Forest Service to manage prairie dogs outlined in the management plan decided on was also a concern.

“In the past, one of the main complaints of ranchers in the TBNG is that the Forest Service has a policy, record of decision and National Environmental Policy Act documents, but they don’t seem to follow them,” said Converse County Commissioner Major Brown of his constituent’s concerns. 

“They are concerned as to whether the Forest Service is going to stick to this new policy or jump back and forth to what fits their fancy,” Brown added.

Finding alternatives

Meeting attendees also expressed concern for lack of other alternatives, and they questioned whether the document would allow other options to incorporate their concerns.

“We don’t have any preconceived ideas about where this will all fall out. We are trying to find middle ground,” Whitson said. “We will have as many alternatives as the scope of comments requires.”

He further explained that because comments received from the public drive the formation of alternatives, it is necessary for concerned citizens to provide written input.

“We are not starting from scratch, and we want to bring something forward that answers the concerns of the folks out in the land,” he continued. 

Comments

“We really stress the written comments,” Whitson said. “We must receive written comments, so we can consider those suggestions in our amendment.”

The written comment period ends on Jan. 3, 2014. 

Submit comments on the scoping document by mail to Medicine Bow-Routt National Forests and TBNG, Douglas Range District, Attn: Responsible Official, 2250 East Richards Street, Douglas, WY 82633, faxed to 307-358-7107 or by email to This email address is being protected from spambots. You need JavaScript enabled to view it..

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..


SIDEBAR 1: 
Current management

“Category one is an area large enough to sustain a viable population of prairie dogs which could potentially support a ferret reintroduction,” Medicine Bow-Routt National Forest District Ranger Tom Whitson explained. “Category two are those prairie dogs managed for all of the associated species to promote more ecological diversity.”

Current conditions show that category one currently includes 10,500 acres, with an objective of 18,000 acres. Category three is the only category that exceeds the objective number of acres.

“Currently, we are actively implementing those management tools implemented in 2009,” Whitson said.

 

SIDEBAR 2:
Thunder Basin National Grasslands

The Thunder Basin National Grassland (TBNG), located in the northeast corner of Wyoming, encompasses 533,000 acres of National Forest system lands. The area is approximately 1.8 million acres in total. 

“The Forest Service manages the bulk of the grazing through three grazing associations within that 1.8 million acres,” Medicine Bow-Routt National Forest District Ranger Tom Whitson said. 

Within that land, Whitson marked a diverse range of plant and animal species. Of those species, the black-tailed prairie dog is considered a keystone species. 

“The prairie dogs provide habitat for the mountain plover, burrowing owl, ferruginous hawk, swift fox and a variety of other species,” Whitson continued. 

Within the TBNG, prairie dogs occupy approximately three percent of Forest Service lands.


 

Washington, D.C. – A 69-page report released on July 7 by the Government Accountability Office (GAO) looked at the “frequency and extent of unauthorized grazing on Bureau of Land Management (BLM) and U.S. Forest Service lands (USFS)” over the last five years. The report found 1,500 recorded incidents of unauthorized grazing in the past five years on federal lands.

The report was compiled at the direction of Rep. Raul Grijalva (D-Ariz.), the ranking member of the House Committee on Natural Resources.

Inside the report

The GAO report said, “The frequency and extent of unauthorized grazing on BLM and USFS lands are largely unknown because, according to agency officials, the agencies prefer to handle most incidents informally, such as with a telephone call, and do not record them.”

The report noted that informal handling of trespassing incidents is common because “in part, they do not consider it a priority.”

However, GAO also comments that the practice of handling trespass informally is not provided for in agency regulations, and regulations do not provide flexibility to resolve incidents without a written notice.

Additionally, the report addressed “perceived lost revenue that would otherwise be incurred through these unreported ‘incidents,’ and calls out the USFS penalty formula as insufficient to act as a true deterrent,” according to the Public Lands Council.

Suggested actions

In their summary, GAO says that several solutions are possible, included amending regulations, establishing new procedures or changing their practices to comply with the existing regulations.

GAO made six recommendations in their report, which agencies generally agreed with.

The first recommendation was to amend regulations on unauthorized grazing use to establish procedures for information resolution of violations or to follow existing regulations by sending a notice for each potential violation.

Secondly, “To improve the effectiveness of BLM’s efforts to track and deter unauthorized grazing, the Secretary of the Interior should direct the Director of BLM to record all incidents of unauthorized grazing, including those resolved informally,” says the report.

GAO also noted that the agency’s handbook, Unauthorized Grazing Use, should be revised to coincide with regulations.

Related to USFS, GAO recommended amending regulations or direction to follow existing regulations related to unauthorized grazing.

Secondly, all USFS incidents of unauthorized grazing should be recorded, even those resolved informally.

Finally, GAO recommended, “To improve the effectiveness of the Forest Service’s efforts to track and deter unauthorized grazing, the Secretary of Agriculture should direct the Chief of the Forest Service to adopt an unauthorized grazing penalty structure that is based, similar to BLM’s, on the current commercial value of forage.”

Incidence of trespass

Dick Loper of the Wyoming State Grazing Board commented, “Yes, we have ranchers in Wyoming who have been trespassed by BLM and USFS. It’s not a common thing, but it does happen more often than reported by BLM.”

While trespass happens on federal lands in Wyoming, Loper said that most trespass incidents are not willful trespass.

“Some trespasses are ‘willful’ because ranchers know BLM isn’t very good about counting cow numbers, and they aren’t out on the range to check things like they used to be,” Loper said, adding, “Most trespass cases are ‘unauthorized location’ issues, not ‘more numbers of livestock on the BLM than are authorized on the permit’ issues.”

Loper further continued that many incidents of trespass occur when livestock move out of the areas that they are supposed to be as a result of the public leaving gates open.

“It is technically a trespass, but this type of trespass is not the direct fault of the rancher,” he said. “We appreciate when BLM recognizes that it isn’t the rancher’s fault and calls the rancher to request they get livestock back where they belong.”

Forthcoming actions

“As a result of this report, the BLM and USFS will likely start to do a better job of documenting situations of livestock ‘trespass’ in the files,” Loper said. “Permittees should insist that when someone receives a notice of trespass in the future, the documents and file information on the situation contain the reasons for the trespass. For instance, if the trespass was caused by gates left open by hunters/recreationists or ‘unknown parties,’ permittees should insist that those reasons which were not the fault of the permittee be contained in the file.”

He also noted that the critical attitude of GAO toward informal resolution of trespass situations means likely changes for producers.

Loper continues, “The federal agencies may not use this ‘informal’ process as much as they currently do in the future so it is good business to be more vigilant as to the location of livestock on federal lands in the future.”

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..

Laramie – On April 12 in Laramie Wyoming Federal District Judge Nancy Freudenthal entertained arguments relevant to a preliminary injunction filed by Western Watershed Projects (WWP) against the Wyoming BLM Lander Field Office in a case surrounding the Green Mountain Common Grazing Allotment.
WWP filed the preliminary injunction in an effort to prevent grazing on the over 500,000-acre allotment in the 2011 season, listing ongoing degradation of the land and a lack of appropriate action by the BLM as the primary reasons for filing.
“We are asking the court for extraordinary relief in what is admittedly a somewhat unusual procedural context in order to halt the ongoing degradation that has been occurring on the Green Mountain Common Allotment for quite some time,” stated Natalie Havlina of Advocates of the West, who spoke on behalf of the petitioners.
“Eight years ago the BLM found that degradation was occurring on this large and very unique allotment. They did not take any appropriate action at that time, as required by the Fundamentals of Rangeland Health. In 2005, following an administrative appeal by several groups, they promised they would take that appropriate action by the end of 2007. The petitioners waited patiently through delays in issuing that decision, then challenged the new decision that was released in 2010, partially on the grounds that it still did not constitute appropriate action, because it would not ensure that the allotment makes progress toward rangeland health compliance,” continued Havlina.
Of the merits of filing for a preliminary injunction, Havlina commented on the disagreement between WWP and the BLM as to what constitutes, “appropriate action.” She utilized a number of BLM documents, primarily from the years of 1999, 2002, 2005 and 2008, in addition citing BLM Environmental Assessments for the allotment, quoting experts associated with WWP and drawing comparisons to additional court cases, primarily filed in the 9th District Court in Idaho.
“Documents say that the years since the 2002 assessment was made have been the driest in recent history, and that the Lander Field Office shifted its attention to managing the potentially devastating impacts of improper grazing during the prolonged drought in cooperation with its permitees. The overall stocking rate levels on these three allotments were significantly reduced during the drought to mitigate long-term damage to riparian areas and upland vegetation. What that tells us is the stocking reductions were done to account for the drought, not to actually improve conditions on the allotment. The drought was no doubt a difficult circumstance for BLM to deal with, but drought is a normal part of the climate here in the West, and the Fundamentals of Rangeland Health do not make an exception for the requirement that significant progress be made when something, like drought, comes along.
“Moving to the issue of irrevocable harm, continued livestock grazing, for these longer seasons of use, at levels comparable to what has happened over the last 10 years, will cause irreparable harm. The permittees have raised the issue of economic harms, and that’s something that court will have to balance when the court makes it decision. But first consider that although it was BLM’s responsibility to take action following the 2002 determination, the permittees did benefit by having seasons of use and being able to graze increased numbers – the permittees did benefit from BLM’s illegal actions. In addition, there are things like conservation easements that are available to help the permittees when they are not able to graze or when they choose not to graze for various reasons.
“Congress has recognized the value of livestock grazing, and said that livestock grazing can happen on some parts of public lands. But when it adopted the Federal Lands Policy and Management Act, it also specifically held, as a policy, that the public lands should be managed in a manner that will protect the quality of scientific, scenic, historical, ecological, environmental, arid atmospheric, water resources and archeological values, that will provide food and habitat for fish and wildlife and domestic animals and that will provide for outdoor recreation and human occupancy and use. While livestock grazing is allowed, it isn’t the policy of the U.S. to allow it to go on so long and to such an extreme that the land is devastated and becomes unsuitable for other uses, or doesn’t support other habitats,” stated Havlina in her argument.
“What the petitioners are asking for is a drastic and extraordinary remedy. The movement to a preliminary injunction has to be clear and it has to be unequivocal. On top of that, certain kinds of preliminary injunctions are particularly disfavorable, one being an attempt to alter the status quo,” responded Assistant U.S. District Attorney Nicholas Vassallo.
“Grazing has occurred on this allotment for at least a century, and probably longer. To say that grazing in these areas of Wyoming is not the statues quo is a pretty amazing statement.
“Another disfavor is the one that affords the movement of relief at the conclusion of the merits of the case, and here I think it would be an understatement that the type of preliminary injunction requested by the petitioners would give them more than they could get on the conclusion of the merits,” noted Vassallo.
“Any claim that the agency failed to act in the past, in our view, is asking for nothing more than an advisory opinion of this court. Declaratory judgment action is supposed to define the rights looking forward, not just to say somebody didn’t do something in the past. Even if the court does reach the merits of the petitioner’s claims, they have not shown strong likelihood of success on the failure to act claim.     
“They argue the BLM has taken no action from 2003 to present to address the conditions on the allotment. That just isn’t true, BLM has taken numerous actions, and these actions fall under the regulations that are referred to as appropriate actions. They’ve significantly reduced stocking rates and they’ve issued decisions closing the allotment early. They’ve issued trespass actions, engaged in numerous range improvement projects, including fencing, riparian enclosures and water projects, as have permitees,” defended Vassallo.
“The petitioners have also argued that the BLM took action to address the drought, and I think its disingenuous to suggest that taking action to address a drought is not taking action to address rangeland conditions. Action can be taken to address multiple purposes,” added Vassallo.
Cheyenne attorney Karen Budd-Falen represented the permittees of the allotment, and added that the most recent Environmental Assessment showed clear improvement of the land in question.
“I find it interesting that, with regard to irreparable injury, the only suggestion by WWP is some sort of a conservation easement if the permittees can’t graze for this year. Quite frankly that’s a ludicrous suggestion – conservation easements are created with a willing buyer and willing seller, they don’t apply to BLM lands, and only apply to private lands, and there has been no one in this room who has been offered a conservation easement by anyone.
“These permittees have all filed uncontested affidavits and declarations that they will suffer irreparable injury if grazing is eliminated. Grazing permittees will have to sell their cattle, and their private lands will be hurt. These lands all work together as a viable ranching unit – to simply say the permittees can eliminate livestock grazing on BLM lands and use their private and state lands simply shows there is no knowledge of grazing and ranch management. It is likely that if the court eliminates grazing in 2011, it will be eliminated permanently,” continued Budd-Falen.
Following arguments, Judge Freudenthal immediately ruled against the preliminary injunction.
“The court finds that for the allotment, grazing is the status quo, considering the preference rights and considering the decades, if not more than a century, of use of this land for grazing. I think it strains credibility to suggest that isn’t the status quo.
“The petitioners are seeking pretty drastic relief in this case – in fact, perhaps the most drastic alternative rather than a more narrowly tailored remedy of interim practice and protective measures.
“Weighing the incremental ecological harms against the harms to the rancher and their communities, and the harms to the administrative process, the court concludes that this factor of balancing the harms weighs in favor of maintaining the status quo,” concluded Freudenthal.
She added the court looked forward to hearing arguments on the case, and that she wished to move the case along and get it scheduled in a timely fashion.
Heather Hamilton 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..

When dealing with the U.S. Forest Service (USFS) and Bureau of Land Management (BLM), Elizabeth Howard notes that litigation should be a last resort, though working together may be frustrating.

“Not to say that litigation isn’t an important sword that we want to be able to wield at the right time, but there are a lot of strategies to use before we get to that point,” she says.

Howard, an attorney who devotes the majority of her time to public lands grazing issues, comments that there are some practical things that can be done to improve the relationship between livestock grazers and federal agencies.

Relationships

The most important aspect of dealing with federal land managers is building a relationship.

“Having a good relationship with the folks we work with – whether that is range staff, the district manager or the forest supervisor – is so critical to having success on the ground,” Howard explains.

Oftentimes, those people permittees have relationships with are more likely to try and help the permittee when they need it.

“They also are a great source of information we might not otherwise have,” she comments. “Having the relationship is critical to being able to work with agencies.”

Howard also emphasizes that producers should focus on their long-term goals on the allotment, rather than fixating on small details.

“If we make a relationship with a young staff person who moves up over time, that long-term relationship is critical,” she adds. “Sometimes we have to sacrifice a particular principle at one moment to keep a long-term goal on track.”

Consultants

After developing relationships with agency personnel, Howard suggests employing good consultants to help with the various technical aspects of the permit.

“Ranchers I see being really successful have good consultants helping them,” she comments. “Whether that is for range, wildlife, water or a combination, a good consultant who can work with the agency and is credible will make our lives easier.”

Consultants should be involved in annual operating meetings and other planning activities to help agency personnel understand what is happening out on the ground.

“It is necessary to have these folks advising us as we are sitting in our turn-out meetings and annual operating meetings to talk to the range conservationists and biologists about what’s going on,” Howard says.

She further notes that a person who has the credentials, background, personality and demeanor to effectively work with agencies can be an asset and an investment for a rancher.

Planning

With a solid team in place, Howard also notes that plans are important.

“We have to have plans for allotments, and we have to know how they interface with the programs on the ranch are important,” Howard says. “I know that most ranchers have that in their head, but they have to get it out on paper and figure out how to implement those plants.”

For long-term planning, she explains that it is important to provide what resources are available to help in cost-sharing and development of plans. Planning can also help ranchers determine the most cost- and time-effective solutions for constructing developments. 

Working with agencies

Howard further says that those ranchers who successfully run on public land often work with the agencies managing the land to find opportunities to solve problems the agency is experiencing.

As an example, she uses an allotment that had a wild horse problem.

“The horses were at about four times their appropriate management level. The problem was significant,” Howard describes. “BLM’s real problem was that they didn't have anywhere to put the horses, so this producer decided not to file a lawsuit but rather to work with a consultant to develop a training facility.”

When pitched to BLM, the agency readily accepted the idea, and today, the rancher has created a training facility for wild horses.

“BLM is paying for the facility and the cost of his whole program,” Howard says. “He will train the horses and then they will be sold or adopted – and his cattle can graze again.”

“We have to look for opportunities to fix problems and be willing to be creative,” she emphasizes.

Another example is in monitoring. Monitoring data must be collected on BLM permits, but oftentimes range conservationists are spread thin over a wide area.

“A lot of states have worked out programs where permittees can work cooperatively to do their own monitoring,” Howard explains. “Cooperative monitoring agreements show that we have the ability to collect data they need to put in our files.”

After working together to build relationships, bring in experts,  plan and work to solve agency problems, Howard notes, “If all else fails, then we may have to litigate. In many instances, there are a lot of other things we can do before we get to litigation.”

Howard spoke during the 2015 National Cattlemen’s Beef Association Cattle Industry Convention and Trade Show in late January.

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..